iW: 


^&  REPORTS 


^CJ 


or 


CONTROVERTED  ELECTIONS 


IN   THE 


SENATE  AND  HOUSE  OE  REPRESENTATIVES 


COMMONAVEALTH    OF    MASSACHUSETTS 


from:    1853    TO    1S85    I N  C IL.  TJ  S I  ^T  E  : 


TOGETHER  "WITH   THE   OPINIONS   GIVEN  BY   THE   SUPREME   JUDICIAL   COURT 
RELATING  TO   SUCH  ELECTIONS  IN   THOSE  YEARS ;  —  A  DIGEST  OP  DECI- 
SIONS OF  SAID  COURT  REGARDING  DOMICILE  (1  MASS.    TO    138  MASS. 
REPS,  inclusive)  ; — AND  THE  MESSAGE  OF  GOV.  ANDREW  VETO- 
ING THE  ACT  OF  1862  REQUIRING  REPRESENTATIVES  IN  CON- 
GRESS     TO      BE      INHABITANTS     OF     THE     DISTRICTS 
FROM     WHICH     THEY     ARE     ELECTED. 


Prepared  and  Published  under  Authority  of  Chapter  60  of  thk 
Resolves  of  the  Legislature  for  the  year  1885, 

BT 

EDWARD  P.  LORING  and  CHAS.  THEO.  RUSSELL,  Jr. 


BOSTON : 

WRIGHT  &  POTTER  PRINTING  CO.,  STATE  PRINTERS, 

18  Post  Office  Square. 

1886. 


d  \  1  -| 

A3 


Commonto^altlj  of  ^assarljusdls. 


CHAPTER   60   OF   THE    RESOLVES    OF   THE   YEAR    1885. 


Besolved,  That  the  President  of  the  Senate  and  the  Speaker  of  the 
House  of  Representatives  are  authorized  and  requested  to  appoint  two 
suitable  persons  to  prepare  and  publisli  an  edition  of  the  reports  of  such 
contested  elections  of  the  Legislature,  from  the  year  eighteen  hundred  and 
fifty -three  to  the  year  eighteen  hundred  and  eighty-five  inclusive,  as  may 
be  of  value  as  precedents,  with  a  suitable  index  thereto. 

Besolved,  That  the  persons  so  appointed  shall  include  in  or  append  to 
the  publication  herein  authorized  all  opinions  given  by  the  Supreme  Ju- 
dicial Court  relating  to  such  elections. 

Besolved,  Tliut  the  number  of  copies  of  the  publication  hereby  author- 
ized shall  not  exceed  one  thousand,  and  shall  be  distributed  as  follows  :  — 
One  copy  shall  be  furnished  to  each  public  library  in  this  Commonwealth; 
—  one  copy  to  each  town  and  city; — twenty-five  copies  to  the  State 
library;  —  one  copy  to  each  member  of  the  Senate  and  House  of  Repre- 
sentatives ;  —  and  the  remainder  shall  be  distributed  in  such  manner  as 
the  President  of  the  Senate  and  the  Speaker  of  the  House  of  Representa- 
tives shall  determine. 

Approved  June  8,  18S5. 

By  virtue  and  in  pursuance  of  the  foregoing  Resolve,  Hon.  Albert  E. 
PiLLSBURY,  President  of  the  Senate,  and  Hon.  John  Q.  A.'  Brackett, 
Speaker  of  the  House  of  Representatives,  on  the  seventh  day  of  July, 
1SS5,  appointed  Edward  P.  Loring  of  Pitchburg,  and  Charles  Theo- 
dore Russell,  Jr.,  of  Cambridge,  to  prepare  and  publish,  as  therein 
required,  an  edition  of  the  reports  of  Contested  Elections  of  the  Leg- 
islature. 

m 


73841 


PREFACE. 


The  value  as  precedents,  of  the  reports  of  the  con- 
troverted election  cases  before  the  legislature  of 
Massachusetts,  was  recognized  as  early  as  1811,  in 
which  year  David  Everett  of  Boston  was  appointed, 
by  order  of  the  legislature,  reporter  of  such  cases. 
He  occupied  that  position  until  1813,  and  published 
in  1812,  a  compilation  of  cases  prior  to  that  year. 
He  was  succeeded  in  1813,  by  Theron  Metcalf,  who 
occupied  the  office  and  published  the  decisions  for 
four  years,  when  the  office  was  abolished.  In  1834, 
Luther  S.  Gushing,  the  clerk  of  the  house  of  rep- 
resentatives was  ordered  by  the  house  to  prepare, 
under  the  direction  of  its  committee,  a  compilation 
of  the  decisions  of  the  house,  in  cases  of  contro- 
verted elections;  and  Theron  Metcalf  of  Dedham, 
Henry  W.  Kinsman  of  Boston  and  Henry  Chapman 
of  Greenfield  were  appointed  such  committee.  This 
compilation  was  published  in  1834.  In  1852,  Luther 
S.  Gushing,  Gharles  W.  Storey  and  Lewis  Josslyn 
were  appointed,  by  resolve  of  the  legislature,  to  pre- 
pare and  publish  a  new  edition  of  the  election  cases 
previously  reported,  together  with  all  cases  which 


VI  PREFACE. 

had  arisen  in  the  house  of  representatives  since  that 
date.  This  edition  was  pubhshed  in  1853,  and  makes 
the  vohime  known  and  cited  as  "  Mass.  Cont.  Election 
Cases,  Gushing,  Storey  and  Josslyn."  Since  then, 
although  an  unsuccessful  attempt  was  made  in  1882, 
to  secure  the  publication  of  the  more  recent  election 
cases,  those  cases  have  remained  unpublished  and 
inaccessible  to  the  public,  until  the  present  publica- 
tion under  the  resolve  of  the  legislature  of  1885. 

The  peculiar  value  of  these  cases,  as  precedents, 
is  owing  primarily  to  the  high  character  of  the  elec- 
tion committees  of  the  two  branches  of  the  legisla- 
ture. Appointed  from  representatives  of  different 
parties,  they  have  brought  to  their  duties,  not  only 
ability  and  learning,  but  a  sense  of  fairness,  —  a 
desire  in  passing  upon  cases  before  them,  to  act 
impartially,  —  and  a  recognition  of  the  fact  that  of 
all  the  committees  of  the  two  houses,  the  Committee 
on  Elections  is,  in  its  work,  judicial  rather  than  polit- 
ical —  dealing  not  with  contemplated  legislation,  but 
with  vested  rights,  and  deciding  not  what  should  be 
done  in  the  enactment  of  law,  but  what  in  law  and 
fact  the  people  have  done  in  the  exercise  of  their 
sovereign  right  of  election.  The  committees,  almost 
without  exception,  have  been  presided  over  by  law- 
yers of  recognized  ability,  to  whom,  as  a  rule,  the 
duty  of  preparing  the  reports  has  been  intrusted; 
and  they  have  performed  that  duty  with  the  knowl- 
edge that  their  reports  necessarily  became  precedents 
to  guide  the  legislature  in  future  decisions.     In  the 


PREFACE.  VI 1 

next  place,  one  political  party,  during-  the  period  in 
which  the  cases  here  reported  arose,  has  had  such  a 
predominating  majoiit}^  in  both  branches  of  the 
legislature,  that  the  temptation  to  make  political 
decisions  in  what  are  mere  trials  of  fact  and  law,  — 
which  has  so  impaired  the  value  of  many  reports  of 
election  controversies  before  other  more  closely 
divided  legislative  bodies,  —  has  been  entirely  absent. 
The  editors,  appointed  from  the  two  political  parties 
in  the  Commonwealth,  take  pleasure  in  saying,  that 
after  careful  and  conscientious  examination  of  every 
case  reported  or  unreported,  they  find  little  indication 
in  any  of  them,  of  partisan  bias,  or  of  a  desire  to  do 
less  than  perfect  justice  to  all  parties  upon  the  law 
and  evidence  presented. 

The  value  of  these  reports  of  election  cases,  — 
not  only  to  succeeding  legislatures  as  precedents  for 
their  guidance,  —  but  also  to  the  public  officers  and 
citizens  of  the  Commonwealth,  in  ascertaining  their 
oflScial  or  personal  rights  and  duties,  and  to  the  pub- 
lic at  large  in  aiding  the  settlement  of  some  of  the 
still  open  questions  in  the  law  of  elections,  is  the 
justification  for  their  publication. 

The  editors  found  the  material  for  their  work  scat- 
tered through  the  senate  and  house  documents  and 
journals  for  the  last  thirty-three  years.  In  most 
cases  the  reports  were  printed,  but  in  some,  especially 
in  the  earlier  cases,  we  had  only  the  original  manu- 
script of  the  reports.     The  material  for  the  work  was 


Ylll  PREFACE. 


gathered  from  all  possible  sources;  the  original 
papers  were  in  all  cases  consulted;  —  and  in  some 
cases  we  had  the  benefit  of  the  memory  and  sug- 
gestions of  the  chairman  of  the  committee  making 
the  report.  In  one  respect  the  Resolve  of  1885, 
under  which  this  compilation  has  been  prepared,  dif- 
fers from  any  previous  action  of  the  legislature  in 
providing  for  the  publication  of  election  cases.  The 
resolve  directs  the  editors  to  publish  such  cases  "  as 
may  be  of  value  as  precedents."  This  limitation  im- 
posed upon  the  editors  the  duty  of  determining,  upon 
the  facts  accessible  to  them,  whether  each  case  had 
been  correctly  decided  by  the  tribunal  in  which  it 
arose.  In  the  exercise  of  this  discretion,  the  editors 
have  reported  by  reference  only,  those  cases  which 
seemed  to  deal  entirely  with  facts.  A  few  cases  ap- 
peared to  have  been  decided  upon  an  incorrect  view 
of  the  law,  and  were  deemed  worthless  as  precedents. 
It  seemed,  however,  wiser  not  to  ignore  or  suppress 
such  cases,  as  they  must  continue  to  exist,  and  be 
more  or  less  accessible  in  the  documents  of  each 
house, —  but  to  report  them  as  briefly  as  possible  by 
reference,  with  a  statement  of  the  opinion  of  the 
editors  as  to  their  value.  The  greatest  embarrass- 
ment has  been  in  dealing  with  those  cases  where  the 
committees  have  been  overruled.  Generally  where 
the  committee  has  been  divided,  the  majority  report 
only  is  published,  —  but  where  the  views  of  the 
minority  have  apparently  been  sustained  by  the  body 
to  which  the  case  was  reported,  the  minority  report 
also  is  given.     In  other  cases  where  the  views  of  the 


PREFACE.  ix 

minority  have  been  referred  to  with  approval  in  sub- 
sequent cases,  or  were  in  part  adopted  by  the  house, 
—  or  seem  to  the  editors  to  have  been  correct, —  they 
are  published  with  such  reference  by  note  as  the  case 
seemed  to  require. 

In  most  of  the  cases  the  editors  have  given  the 
reports  verhatim^  making  only  occasional  changes  in 
phraseology  where  they  seemed  necessary.  We  have, 
however,  for  the  sake  of  brevity,  in  many  cases  omit- 
ted tables  of  votes  and  diagrams  of  rooms,  etc.,  where 
they  were  not  necessary  to  a  right  understanding  of 
the  merits  of  the  case.  And  in  some  cases  we  have 
been  able  to  omit  or  abridge  evidence,  which  was 
merely  cumulative,  and  unnecessary  in  a  legal  prece- 
dent. The  district  system  of  representation,  adopted 
in  1857,  rendered  it  impossible,  even  if  otherwise 
advisable,  to  refer  to  the  cases  by  the  names  of 
the  towns  in  which  they  arose,  as  was  done  by  our 
predecessors,  and  we  have  therefore  entitled  the 
cases  by  the  names  of  the  parties  to  the  contro- 
versy. That  the  reports  may  have  all  the  value  of 
w^hich  they  are  susceptible,  we  have  in  all  cases  stated 
the  names  of  the  members  of  the  committee  hearing 
the  case,  the  name  of  the  member  presenting  the 
report,  the  names  of  any  dissenting  members, —  and 
whei'ever  it  has  been  possible,  the  names  of  counsel 
engaged  in  the  case. 

We  have  occasionally  added  to  the  report  of  a 
case,  an  editorial  note  for  the  purpose  of  call- 
ing attention  to  the  judicial  decisions  sustaining  the 


X  PREFACE. 

views  of  the  committee,  or  to  authorities  opposed 
to  some  expression  or  finding  in  a  report.  These 
notes  have  been  prepared  mainly  by  Mr.  Russell,  to 
whom  his  associate  editor  desires  full  credit  to  be 
given.  Whenever,  as  in  all  cases  before  1883,  stat- 
utes have  been  cited,  the  editors  have  added  by  note 
or  in  the  text  the  present  citations  in  the  Public 
Statutes. 

The  editors  have  stated  after  each  case  the  disposi- 
tion made  of  it  in  the  branch  of  the  legislature  to 
which  it  was  reported.  In  doing  this,  we  have  fol- 
lowed substantially  the  language  of  the  Journal  of 
the  senate  or  house,  without  deeming  it  our  duty  to 
decide  whether  in  every  case,  the  language  was  in 
strict  compliance  with  parliamentary  form.  Whether  . 
the  case  should  be  disposed  of  ])y  "  resolve "  or 
"resolution;"  whether  the  report  of  the  committee 
should  be  "adopted,"  "agreed  to,"  or  "accepted;" 
and  the  resolution  "  adopted,"  or  "  passed,"  seemed 
to  us  of  little  consequence  in  a  work  of  this  kind, 
so  long  as  the  intention  of  the  body  was  made  mani- 
fest. In  citing  the  Senate  Journal  we  have  used  the 
easily  understood  abbreviation  of  S.  J. ;  and  in  citing 
the  House  Journal  of  H.  J.  The  Senate  Journal 
was  first  printed  in  1868,  so  that  the  references  to  it 
before  that  year,  are  to  the  manuscript  journals 
in  the  State  Library.  The  House  Journals  were 
printed  in  1854,  1855,  1856  and  1857,  and  again  in 
1864,  and  since  that  year,  so  that  the  references  to  it 
in  other  years  are  also  to  the  manuscript  journals. 


PREFACE.  XI 

The  resolve  of  1885  required  the  editors  to  include 
in,  or  append  to,  their  edition  "  all  opinions  given  by 
the  supreme  judicial  court  relating  to  such  elections." 
In  performing  this  duty,  the  editors  have  given  a 
liberal  construction  to  the  requirement  of  the  resolve, 
and  have  published  in  the  supplement  all  opinions 
since  1852,  which  seem  to  them  pertinent  to  any 
question  of  election  law,  or  of  the  eligibility  of  mem- 
bers of  the  legislature. 

•  In  view  of  the  fact  that  the  law  of  domicile  has 
largely  entered  into  election  controversies,  in  the  past, 
and  will  undoubtedly  enter  into  them  in  the  future, 
under  the  provision  of  the  Constitution  requiring  the 
qualification  of  inhabitancy  in  members  of  the  legisla- 
ture, and  of  residence  in  voters,  —  the  editors  have 
also  prepared  and  published  in  the  supplement  a  full 
digest  of  all  the  decisions  of  the  supreme  judicial 
court  of  Massachusetts  upon  that  subject,  —  using 
in  the  digest  of  general  principles,  the  exact  language 
of  the  court  as  far  as  possible.  The  message  of 
Gov.  Andrew  in  18G2,  vetoing  the  Act  dividing  the 
Commonwealth  into  districts  for  the  election  of  rep- 
resentatives in  Congress,  because  the  act  required 
each  representative  to  be  an  inhabitant  of  the  district 
from  which  he  was  elected,  has  been  deemed  by  the 
editors  worthy  of  preservation  in  a  work  on  election 
law,  and  we  have  taken  the  liberty  of  printing  it  in 
the  supplement. 

In  preparing  the  head  notes  and  index,  the  editors 
have  endeavored  to  guard  against  overstatement, 
striving  only  to  learn  the  exact  point  decided,  and 


Xll  PREFACE. 

then  to  state  it  as  nearly  as  possible  in  the  very  lan- 
guage of  the  report.  The  index,  which  must  also 
serve  as  a  digest,  is  made  from  the  head  notes,  and  with 
a  desire  to  make  it  as  complete  and  convenient  as 
possible,  in  the  hope  that  it  may  be  found  a  ready 
means  of  reference  to  all  points  decided  in  the  re- 
ports. 

The  editors  take  pleasure  in  acknowledging  their 
indebtedness  to  Hon.  Albert  E.  Pillsbuky,  not  only 
for  the  use  of  his  collection  of  the  election  cases  to 
1879,  with  his  valuable  notes  thereto,  but  also  for 
suggestions  and  advice  which  his  familiarity  with  the 
reports  and  knowledge  of  the  law  of  elections,  made 
of  great  service  to  us,  and  benefit  to  the  publication. 

The  editors  are  also  under  obligation  to  Robert 
A.  SouTHWORTH,  Esq.,  the  efiicient  assistant  clerk  of 
the  house  of  representatives,  whose  access  to,  and 
knowledge  of,  legislative  documents  and  action  have 
much  aided  our  work.  Mr.  Southworth  collected 
the  material  for  the  publication,  examined  the  journals 
and  records  to  ascertain  the  disposition  of  all  the 
cases,  and  prepared  the  tables  of  cases  reported  and 
unreported,  and  the  table  of  cases  cited.  He  has  also 
greatly  assisted  the  editors  in  the  supervision  of  the 
printing  of  the  reports. 

In  conclusion  the  editors  wish  to  say,  that  while 
they  have  endeavored  to  prepare  what  the  legislature 
intended  by  the  resolve,  a  volume  of  cases  of  value  as 
precedents,  they  are  aware  that  any  value  it  possesses 


PREFACE.  Xlll 

is  owing  not  to  any  effort  of  theirs,  but  to  the  able 
and  conscientious  work  of  the  chairmen  of  the  elec- 
tion committees,  who  have  been  called  upon  in  many 
cases  to  guide  their  committees  in  the  consideration 
of  difficult  and  novel  questions,  and  have  performed 
their  public  and  judicial  duty,  not  only  with  the  abil- 
ity apparent  in  these  reports,  but  in  a  non-partisan 
spirit  which  has  made  them  worthy  of  preservation  in 

this  form. 

Edward  P.  Loreng. 

Chas.  Theo.  Kussell,  Jr. 

Boston,  December  28,  1885. 


TABLE  OF  CASES  EEPOETED. 


(By  Names  of  Parties.) 


NAME 


Case. 


Page. 


Abbott  (Shaw  v.) 
Allen  V.  Crowley, 


V.) 


Allis  (Pease  and  Foster  Pets. 

Ames  V.  Beebe,  .... 
Anderson  v.  Tewksbury,     . 
Andrew,  .John  A.,  Veto  message  of, 
Apportionment  of  Representatives 

rop  et  als.  Pet.) 
Arnold  v.  Champney, 
Austin  V.  Sweet, 


Babbitt  (Burt  v.) 
Bacon  (French  v.) 
Baker  v.  Hunt,  . 
Barr  et  als.,  Pets., 
Bartholmesz  (Hobbs  v.) 
Batchelder  (Merriam  v.) 
Bean  v.  Tucker, 
Beck  et  cds.  v.  Collins  and 
Beebe  (Ames  v.) 
Bird  (Leland  v.) 
Bird  V.  Merrick, 
Blake  (Pope  et  al.  v.) 
Boardman  (Stimson  v.) 
Bond  (Bowker  v.) 
Bowker  v.  Bond. 
Bowker,  Hughes,  Fife  and 
Breed  (Stimpson  v.)  . 
Bridgeman  (Greene  v.) 
Britton  (Thompson  v.) 
Brown  and  Cole  (Johnson 
Brown  and  Lay,  Pets., 
Brown  (Martin  v.) 
Brown  (Pierce  v.) 


(Loth 


Plummet, 


McCue,  Pets 


V 


)     . 


Ho.  1868 

Sen.  1883 

Ho.  1883 

Ho.  1880 

Ho.  1874 

Ho.  1862 

Ho.  1858 

Ho.  1867 

Ho.  1873 


Ho. 

Ho. 

Ho. 

Ho. 

Ho. 

Ho. 

Ho. 

Ho. 

Ho. 

Sen. 

Ho. 

Ho. 

Sen. 

Ho. 

Ho. 

Ho. 

Ho. 

Ho. 

Sen. 

Ho. 

Ho. 

Ho. 

Ho. 


1872 
1873 
1884 
1876 
1872 
1877 
1860 
1858 
1880 
1871 
1866 
1879 
1872 
1879 
1879 
1876 
1876 
1875 
1875 
1858 
1874 
1858 
1860 


139 
368 
374 
377 
346 
199 
495 

49 
121 
189 

174 

184 

378 

254 

182 

294 

89 

40 

346 

153 

115 

320 

171 

320 

320 

282 

257 

216 

214 

36 

199 

39 

92 


XT 


XVI 


MASSACHUSETTS    ELECTION    CASES  —  1853-1885. 


Table  of  Cases,  Etc.,  by  Names  — 

-  Continued. 

NAME. 

Case. 

Page. 

Buckminster  (Shaw  v.)          .... 

Ho. 

1875, 

221 

Burt  V.  Babbitt, 

Ho. 

1872, 

174 

Carney  (Taylor -y.) 

Ho. 

1875, 

228 

Carr  v.  Hawkes, 

Ho. 

1875, 

229 

Chadwell,  Pet.  (McGibbons  v.  Walden) 

Ho. 

1877, 

289 

Champney  (Arnold  v.) 

Ho. 

18G7, 

121 

Chapin  v.  Snow,  .         .      *  . 

Ho. 

1864, 

96 

Chappelle  v.  Prince,      ..... 

Ho. 

1885, 

396 

Claflin  et  als.  v.  Wood,           .... 

Ho. 

1881, 

353 

Clapp  V.  Sherman, 

Sen. 

1878, 

307 

Clark  V.  Hampden  County,  Examiners  of,   . 

Sup. 

Jud.Ct. 

456 

Clark  (Prince  v.) 

Ho. 

1859, 

65 

Clark  V.  Salmon, 

Sen. 

1874, 

191 

Closson  (Haskell  v.) 

Ho. 

1875, 

233 

Coggswell  V.  McNeil, 

Ho. 

18G(), 

108 

Cogswell  (Collins  v.) 

Sen. 

1885, 

390 

Cole  (Johnson  v.) 

Ho. 

1858, 

36 

Cole  (Taft  v.) 

Ho. 

1858, 

45 

Collins  V.  Cogswell, 

Sen. 

1885, 

390 

Collins  and  Plummer  (Beck  et  als.  v.)  . 

Ho. 

1858, 

40 

Commonwealth  v.  Hawkes,  .... 

Sup 

Jud.Ct. 

445 

Commonwealth  v.  Smith,       .... 

Sup. 

Jud.Ct. 

461 

Conley  and  Jones  (Hinks  and  Cornell  v.) 

Ho. 

1850, 

27 

Cornell  and  Ilinks  v.  Conley  and  Jones, 

Ho. 

1856, 

27 

Councillor  Contest  (Rice  v.  Welch) 

H.&S.1868, 

128 

Crossman  (Prescott  et  als.  v.)       . 

Ho. 

1877, 

303 

Crowley  (Allen  v.) 

Sen. 

1883, 

368 

Cummings,  John  W.,  Pet.,  .... 

Sen. 

1883, 

360 

Cummings  (Monroe  v.)         .... 

Ho. 

1874, 

212 

Cummings  v.  Shumway,        .... 

Ho. 

1858, 

41 

Cushing,  Geo.  A.,  Pet.,        .... 

Ho. 

1880, 

352 

Cutter  and  Shaw  (McPhail  and  Thayer  v.)  . 

Ho. 

18G6, 

114 

Daly,  Taylor  and  Barr,  Pets., 

Ho. 

1876, 

254 

Darling  (Haws  e«  aZs.  v.)     .... 

Ho. 

1853, 

18 

Davis  V.  Murphy, 

Ho. 

1872, 

177 

Day  V.  Taft, 

Ho. 

1856, 

35 

Domicile  (see  Inhabitancy) . 

Draper,  David  S.,  /n  re,      .... 

Ho. 

1870, 

143 

Edson  (Graves  v.) 

Sen. 

1874, 

196 

Election,  Supervisors  of,      . 

Sup. 

Jud.Ct. 

428 

P^lections,  Opinion  given  by  Justices  relat- 1 
ingto,      ......         1 

Sup. 

Jud.Ct. 

J  401 
(472 

TABLE    OF   CASES   REPORTED. 


XVll 


Table  op  Cases,  Etc.,  by  Najies  —  Continued. 


N  A  ME 


Page. 


Fairbanks  (McManus  v.)     . 

Field  et  ah.  v.  Wilder, 

Fife,  Bowker,  Hughes  and  McCue,  Pets., 

Filkins  v.  Spillane,       .... 

Fisher  (Macoraber  v.)  ... 

Flanders  (Hillman  v.S  ... 

Foster,  Wm.  W.,  Pet., 

French  v.  Bacon,  .... 

Garrity  v.  Grossman  (Prescott  et  als.,  Pets.) 
Gove  V.  Rowell  (Pease  et  al.,  Pets.) 
Graves  v.  Edson, 
Green  et  al.  (Slate  v.)  . 
Greene  v.  Bridgman,     . 
Greene  (Holmes  v.) 
Griffin,  John  Q.  A.,  In  re, 
Grover  v.  Mcintosh,    . 

Hallinan  (Osborne  v.) 

Hampden  County,  Examiner  of  (Clark  v.) 

Harding  et  a's..  Pets,  . 

Harris  v.  Richardson,  . 

Harris  v.  VVhitcomb  et  als., 

Haskell  v.  Closson, 

Haskell  (Holmes  v.)     . 

Hawkes  (Carr  v.) 

Hawkes  (Commonwealth  v.) 

Haws  et  als.  v.  Darling, 

Haj'den  v.  Jenkins, 

Hayes  (Jenks  v.) 

Ha3'nes  v.  Hillis,. 

Heard  (Harding  et  als.  v.) 

Hillis  (Haynes  v.) 

Hillman  v.  Flanders,    . 

Hinks  and  Cornell  v.  Jones  and  Conley 

Hobbs  V.  Bartholmesz, 

Holmes  v.  Greene, 

Holmes  v.  Haskell, 

Holmes  (Newcomb  v.) 

Hood  V.  Potter,     . 

Hooper  (Wright  v.) 

Howe  (Ordway  et  als.  v.) 

Howe  (Palmer  v.) 

Howe  (Safford  et  als.  v.),  note, 

Hughes,  Bowker,  Fife  and  McCue,  Pets., 

Hunt  (Baker  v.)  .... 


Ho.  1875,  215 

Sen.  1866,  106 

Ho.  1876,  282 

Ho.  1879,  331 

Ho.  1878,  311 

Ho.  1880,  338 

Ho.  1883,  377 

Ho.  1873,  184 

Ho.  1877,  303 

Ho.  1866,  108 

Sen.  1874,  196 

Ho.  1875,  226 

Ho.  1875,  216 

Sup.Jud.Ct.  407 

Ho.  1859,  71 

Ho.  1881,  353 

Ho.  1877,  306 

Sup.Jud.Ct.  456 

Ho.  1872,  175 

Ho.  1883,  372 

Sup.Jud.Ct.  404 

Ho.  1875,  233 

Ho.  1870,  144 

Ho.  1875,  229 

Sup.Jud.Ct.  445 

Ho.  1853,  18 

Ho.  1877,  306 

Sen.  1874,  198 

Ho.  1877,  300 

Ho.  1872,  175 

Ho.  1877,  300 

Ho.  1880,  338 

Ho.  1856,  27 

Ho.  1872,  182 

Sup.Jud  Ct.  407 

Ho.  1870,  144 

Ho.  1859,  57 

Ho.  1875,  217 

Ho.  1865,  100 

Sen.  1853,  3 

Ho.  1870,  145 

Sen.  1853,  17 

Ho.  1876,  282 

Ho.  1884,  378 


XVIU  MASSACHUSETTS    ELECTION   CASES 1853-1885. 


Table  of  Cases,  Etc.,  by  Names — Continved, 


NAME 


Case. 


Ino;alls  (Wait  et  ah.  v.)        .         .         . 
Inbiibitancy,  Decision  of  the  Supreme  Judi- 
cial Court  relating  to,  and  residence, 

Jenkins  (Hayden  v.)     . 

Jenkins  (Mulchinock  v.) 

Jenkins  v.  Shaw,  . 

Jenks  V.  Hayes.    . 

Johnson  v.  Cole,  . 

Jones  and  Conley  (Hinks  and  Cornell  -y.) 

Keith  et  cds.  v.  Mayhew, 
Keith  and  Green  (Slate  v.) 
Keyes  (Scribner  v.) 
Kimball  v.  Tilton, 
King  V.  Park, 
King  (Tobey  v.)  . 
Knowlton  v.  Rice, 

Lay  and  Brown,  Pets., 
Leiand  v.  Bird,     . 
Locke  (O'Connor  v.)     . 
Lombard  v.  Oliver  et  als., 
Lombard  v.  Oliver  et  als.^ 
Loncrgan  (Morse  v.)    . 
Lothrop,  Thornton  K.,  et  als.,  Pets, 
Luce  V.  Mayhew  et  als., 
Lynde  et  als..  Pets., 

Macomber  v.  Fisher, 

Martin,  Pet.  (Lynde  et  als..  Pets.) 

Martin  v.  Brown, 

Maxwell  v.  Vincent, 

Mayhew  (Keith  et  als.  v.) 

Mayliew  et  als.  (Luce  v.) 

Maynard  and  Ordway  v.  Woodbury  et  als., 

MfcCne,  Bowker,  Hughes  and  Fife,  Pets., 

McDonald  (Quirk  v.)   . 

McDuffee  (Trask  v.)    . 

McGahey  (Splaine  v.)  . 

McGeough  (McMahan  v.) 

McGibbons  v.  Walden, 

Mcintosh  (Grover  v.)  . 

McMahan  v.  McGeough, 

McManus  v.  Fairbanks, 

McNeil  (Coggswell  v.) 


Sen.  1868, 
Sup.Jud.Ct. 


Ho. 
Ho. 
Ho. 
Sen 
Ho. 
Ho. 

Sen. 

Ho. 

Ho. 

Ho. 

Sen. 

Ho. 

Sen. 


1877, 
1879, 
1876, 
1874, 
1858, 
185G, 

1876, 

1875, 
1877, 
1878, 
1871, 
1859, 
1860, 


Ho.  1874, 
Sen.  1871, 
Ho.  1878, 
Sup.Jud.Ct. 

Ho.  1877, 
Ho.  1858, 
Sup.Jud.Ct. 
Ho.  1856, 


Ho. 
Ho. 
Ho. 
Ho. 

Sen. 


1878, 
1856, 
1858, 
1875, 
1876, 


Sup.Jud.Ct. 
1871, 
1876, 
1875, 
1868, 
1885, 
1883, 
1877, 
1881, 
1883, 
1875, 
1866, 


Ho. 

Ho. 

Ho. 

Ho. 

Sen. 

Sen. 

Ho. 

Ho. 

Sen. 

Ho. 

Ho. 


TABLE    OF    CASES    REPORTED. 


XIX 


Table  of  Cases,  Etc.,  by  Names 

—  Continued. 

NAME. 

Case. 

Page. 

McPhail  and  Thayer  v.  Shaw  and  Cutter, 

.      Ho. 

1866, 

114 

Merriam  v.  Batchelder, 

.      Ho. 

1877, 

294 

Merrick  (Bird  v.) 

.      Ho. 

1866, 

115 

Monroe  v.  Cummings,  .... 

.      Ho. 

1874, 

212 

Montague  (Perry  v.)     . 

.      Ho. 

1874, 

200 

Morse  v.  Lonergan,       .... 

.      Ho. 

1877, 

288 

Mulchinock  v.  Jenkins, 

.      Ho. 

1879, 

319 

Murphy  (Davis  v.)        .         .         .         . 

.      Ho. 

18  72-, 

177 

Murphy,  Woodbmy  and  Regan   (Ordway  e 

als.  V.)      ......         . 

Ho. 

1871, 

163 

New  comb  v.  Holmes,    .... 

.      Ho. 

1859, 

57 

O'Connor  v.  Locke,      .... 

Ho. 

1878, 

310 

Oliver  (Lombard  v.)    .... 

.      Sup. 

Jud.Ct 

422 

Oliver  (Lombard  v.)    . 

(, 

i          n 

425 

Opinions  of  Justices  given  to  Senate,  House 

of  Representatives  and  Council,  — 

10  Gray,  613, 

— 

409 

117  Mass.  599,      .... 

— 

432 

122      "      594,      .... 

— 

435 

122      "      600,      .... 

— 

441 

124      "      596,      .... 

— 

453 

136      "      583,      .... 

— 

468 

Ordway  et  als.  v.  Howe, 

Sen. 

1853, 

3 

Ordway  and  Maynard  v.  Woodbury  et  als., 

.      Ho. 

1871, 

163 

Osborne  v.  Hallinan,    .         .         .         .         . 

Ho. 

1877, 

306 

Palmer  v.  Howe, 

Ho. 

1870, 

145 

Park  (King  v.)    . 

Sen. 

1871, 

155 

Pease,  Pet.  (v.  Allis  and  Foster) 

.      Ho. 

1883, 

374 

Pease  et  ah.  v.  Rowell, 

Ho. 

1866, 

108 

Penniraan  et  als.  v.  Prindle, 

Ho. 

1854, 

24 

Perry  v.  Montague,      .... 

Ho. 

1874, 

200 

Pierce  v.  Brown,  .... 

Ho. 

1860, 

92 

Plummer  and  Collins  (Beck  et  als.  v.) 

Ho. 

1858, 

40 

Pope  e'  nl.  v.  Blake,     . 

.      Ho. 

1879, 

320 

Potter  (Hood  V.) 

Ho. 

1875, 

217 

Prescolt  et  a's.  v.  Crossman, 

Ho. 

1877, 

303 

Prince  (Chappelle  v.)   . 

.      Ho. 

1885, 

396 

Prince  v.  Clark,    .... 

.      Ho. 

1859, 

65 

Prindle  (Penniman  et  als.  v.) 

.      Ho. 

1854, 

24 

Quirk  V.  McDonald, 

• 

.      Ho. 

1875, 

229 

XX 


MASSACHUSETTS    ELECTION    CASES — 1853-1885. 


Table  of  Cases,  Etc.,  by  Names  — 

-  Continued. 

NAME. 

Case. 

Page. 

Regan,     Woodbury   and    Murphy    (Ordway 

et  al.  V.)  . 

Ho. 

1871, 

163 

Rice  (Knowlton  v.) 

Sen. 

1860, 

80 

Rice  V.  Welch,      .         .         .         .         . 

H.&S.1868, 

128 

Richardson  (Harris  v.) 

Ho. 

1883, 

372 

Rowell  (Pease  et  al.  v.) 

Ho. 

1866, 

108 

S afford  et  als.  v.  Howe,  note, 

Sen. 

1853, 

17 

Salmon  (Clark  v.) 

Sen 

1874, 

191 

Sampson  v.  Watei-man,         .... 

Ho. 

1876, 

253 

Scribner  v.  Keyes, 

Ho. 

1877, 

296 

Shaw  V.  Abbott, 

Ho. 

1868, 

139 

Shaw  V.  Buckminster,            .... 

Ho. 

1875, 

221 

Shaw  et  al.  (Thayer  et  al.  v.) 

Ho. 

1866, 

114 

Shaw  (Jenkins  v.) 

Ho. 

1876, 

266 

Sherman  (Clapp  v.) 

Sen. 

1878, 

307 

Shumway  (Cummings  v.)      . 

Ho. 

1858, 

41 

Slate  V.  Green  and  Keith,     .... 

Ho. 

1875, 

226 

Smith  (Commonwealth  v.)    . 

Sup. 

Jud.  Ct. 

461 

Snow  (Chapin  v.) 

Ho. 

1860, 

96 

Spillane  (Filkins  v.) 

Ho. 

1879, 

331 

Splaine  v.  McGahey, 

Sen. 

1885, 

393 

Steere,  Martin  J.,  In  re, 

Ho. 

1853, 

20 

Stimson  v.  Boardman, 

Sen. 

1872, 

171 

Stimpson  v.  Breed, 

'Ho. 

1876, 

257 

Supervisors  of  Election,        .... 

Sup. 

Jud.Ct. 

428 

Supreme  Judicial  Court.     (See  Opinions  of 

Justices,  etc. ;  Inhabitancy.) 

Sweet  (Austin  v.) 

Ho. 

1873, 

189 

Taft  V.  Cole, 

Ho. 

1858, 

45 

Taft  (Day  v.) 

Ho. 

1856, 

35 

Taylor  v.  Carney, 

Ho. 

1875, 

228 

Taylor,  Barr  and  Daly,  Pets., 

Ho. 

1876, 

254 

Tewksbury  (Anderson  v.)    . 

Ho. 

1874, 

199 

Thayer  et  al.  v.  Shaw  et  al., . 

Ho. 

1866, 

114 

Thompson  v.  Britton, 

Sen. 

1875, 

214 

Tilton  (Kimball  v.) 

Ho. 

1878, 

315 

Tobey  v.  King, 

Ho. 

1859, 

60 

Trask  v.  McDuffee, 

Ho. 

1868, 

138 

Tucker  (Bean -y.) 

Ho. 

1860, 

89 

Vincent  (Maxwell  v.) 

Ho. 

1875, 

225 

"Wait  et  als.  v.  Ingalls,           .... 

Sen. 

1868, 

133 

Waite  v.  Woodward  e<  aZs.,  . 

Sup. 

Jud.Ct. 

401 

TABLE    OF    CASES    REPORTED. 


XXI 


Table  op  Cases,  Etc.;  by  Names - 

-  Concluded. 

NAME. 

Case. 

Page. 

"Walden  (McGibbons  v.)       .         .        .         . 
Waterman  (Sarapson  v.)       . 

Welch  (Ricev.) 

Westfiekl,  recount  in  the  town  of,  Iti  re, 
Whitcomb  et  als.  (Harris  v.)         .         .         . 
Whitaker,  John  B.,  Pet.,       .... 
Wilder  (Field  e«a/s.  IJ.)        .... 
Wood  (Claflin  et  al.  v.) 
Woodbury  (Claflin  et  als.,  Pets.)  v.  Wood,  . 
Woodburj'  et  als.  (Ordwa}^  and  Maynard  v.) 

Woodward  (Waite  v.) 

Wright  V.  Hooper, 

Ho.    1877, 
Ho.    1876, 
H.cS:S.1868, 
H.&S.1879, 
Sup.Jud.Ct. 
Sen.  1883, 
Sen.  1866, 
Ho.    1881, 
Ho.    1881, 
Ho.    1871, 
Sup.Jud.Ct. 
Ho.    1865, 

289 

253 
128 
333 
404 
360 
106 
353 
353 
163 
401 
100 

XXll 


MASSACHUSETTS   ELECTION   CASES 1853-1885. 


TABLE  OF  CASES  REPORTED. 


(By  Districts.) 

DISTRICT. 

Case. 

Page. 

Berkshire  County. 

1st  Rep.  Dist.  (Taft  v.  Cole) 

Ho. 

1858, 

45 

2cl          "           (Johnson  v.  Cole) 

Ho. 

1858, 

36 

2d          "           (Arnold  v.  Champney) 

Ho. 

18G7, 

121 

7th         "           (In  re  David  S.  Draper) 

Ho. 

1870, 

143 

Town  of  Williamstown  (Penniman  v.  Prindle) , 

Ho. 

1854, 

24 

Bristol  County. 

2d   Sen.  Dist.  (Wliitaker  and  Cunaraings)   . 

Sen. 

1883, 

360 

2d   Rep.  Dist.  (Austin  v.  Sweet) 

Ho. 

1873, 

189 

5th         "           (Burt  V.  Babbitt) 

Ho. 

1872, 

174 

7th         "           (Macomber  v.  Fisher)  . 

Ho. 

1878, 

311 

10th         "          (Shaw  V.  Buckminster) 

Ho. 

1875, 

221 

Dukes  County. 

1st  Rep.  Dist.  (Ilillraan  v.  Flanders)  . 

Ho. 

1880, 

338 

1st      .   "           (Newcomb  v.  Holmes) 

Ho. 

1859, 

57 

Essex  County. 

2d   Sen.  Dist.  (Ordwaj^  et  als.  v.  Howe) 

Sen. 

1853, 

3 

2d          "           (Collins  v.  Cogswell)    . 

Sen. 

1885, 

390 

1st  Rep.  Dist.  (Lay  and  Brown,  Pets.) 

Ho. 

1874, 

199 

3d          "          (Davis -y.  Murphy) 

Ho. 

1872, 

177 

3d          "          (French  v.  Bacon) 

Ho. 

1873, 

184 

4th        "          (Pope  et  al.  v.  Blake)    . 

Ho. 

1879, 

320 

11th         "           (McGibbons  a;.  Walden 

Ho. 

1877, 

289 

13th         "           (Merriam  v.  Batchelder) 

Ho. 

1877, 

294 

14th         "           (Wright  v.  Hooper)      . 

Ho. 

1865, 

100 

15th         "           (Haskell  v.  Closson)     . 

Ho. 

1875, 

233 

17th         "          (Carr  v.  Hawkes) 

Ho. 

1875, 

229 

18th         "          (Stirapson  v.  Breed)     . 

Ho. 

1876, 

257 

19th         "           (Kimball  v.  Tilton)       . 

Ho. 

1878, 

315 

20th         "          (Hood  V.  Potter)  . 

Ho. 

1875, 

217 

TABLE    OF    CASES    REPORTED. 


XX111 


Table  of  Cases,  Etc.,  by  Districts — Continued. 


DISTRICT. 

Case. 

Page. 

Franklin  County. 

Sen.  Dist.  (Keith  et  al.  v.  Mayhcw) 

Sen. 

1876, 

239 

"           (Field  et  als.  v.  Wilder) 

Sen. 

18GG, 

106 

2d    Rep  Dist.  (Perry  v.  Montague)     . 

Ho. 

1874, 

200 

3d          "           (Slate  v.  Green  and  Keith)   . 

Ho. 

1875, 

226 

4th         "           (Pease,  Pet.) 

Ho. 

1883, 

374 

4th         "           (Foster,  Pet.) 

Ho. 

1883, 

377 

5th         ''           (Maxwell  v.  Vincent)   . 

Ho. 

1875, 

225 

PIampden  Codnty. 

10th  Rep.  Dist.  (Westfleld,  Recount  in  town 

of,  In  re)           .         .         .    '     . 

Ho. 

1879, 

333 

Hampshire  County. 

Sen.  Dist.  (Graves  v.  Edson) 

Sen. 

1874, 

196 

5th  Rep.  Dist.  (Greene  v.  Bridgman)  . 

Ho. 

1875, 

216 

6th         "           (Chapin  v.  Snow) 

Ho. 

1864, 

96 

Middlesex   County. 
4th  Sen.  Dist.  (Clapp  v.  Sherman) 
6th         "  (Thompson  v.  Britton) 

7th         "  (Clark  v.  Salmon) 

7th         "  (Allen  v.  Crowley) 

1st  Rep.  Dist.  (Quirk  v.  McDonald) 


4th 
6th 
8th 

9th 
10th 
11th 
13th 
19th 
20th 
22d 
22d 
23d 
26th 
27th 
30th 


(( 


u 


(la  re  John  Q.  A.  Griffin) 

(Prince  v.  Clark) 

(Beck  et  als.  v.  Collins  and 

Plummer) 
(Trask  v.  McDuffee)     . 
(Pierce  v.  Brown) 
(Ames  V.  Beebe) 
(McManus  v.  Fairbanks) 
(Harding  et  als.,  Pets.) 
(Scribner  v.  Keyes) 
(Prescott  et  als.  v.  Grossman) 
(Monroe  v.  Cummings) 
(Coggswell  V.  McNeil) 
(Cummings  v.  Shumway) 
(Haynes  v.  Hillis) 
(Clnflin  et  als.  v.  Wood) 


Town  of  Melrose  (Lynde  et  als..  Pets.) 

Norfolk   County. 
3d  Sen.  Dist.  (Leland  v.  Bird)  . 
3d  Rep.  Dist.  (Ilobbs  v.  Bartholmesz) 
4th         "  (Morse  v.  Lonergan)    . 

5th         "  (Geo.  A.  Gushing,  Pet.) 


Sen. 

1878, 

307 

Sen. 

1875, 

214 

Sen. 

1874, 

191 

Sen. 

1883, 

368 

Ho. 

1875, 

229 

Ho. 

1859, 

71 

Ho. 

1859, 

65 

Ho. 
Ho. 
Ho. 
Ho. 
Ho. 
Ho. 
PIo. 
Ho. 
Ho. 
Ho. 
Ho. 
Ho. 
Ho. 
Ho. 


1858, 
1808, 
1860, 
1880, 
1875, 
1872, 
1877, 
1877, 
1874, 
1866, 
1858, 
1877, 
1881, 
1856, 


Sen.  1871, 
Ho.  1872, 
Ho.  1877, 
Ho.  1880, 


40 
138 

92 
346 
215 
175 
296 
303 
212 
108 

41 
300 
353 

25 


153 

182 
288 
352 


XXIV  MASSACHUSETTS    ELECTION    CASES 1853-1885. 


Table  of  Cases,  Etc.,  by  Districts — Concluded. 


DISTRICT. 

Case. 

Page. 

9th  Rep.  Dist. 

(Grover  v.  Mcintosh)  . 

• 

Ho. 

1881, 

353 

nth 

(( 

(Bird  V.  Merrick)  . 

• 

Ho. 

1866, 

115 

Plymouth  County. 

5th  Rep.  Dist 

(Sampson  v.  Waterman) 

Ho. 

1876, 

253 

7th 

n 

(Shaw  V.  Abbott) 

Ho. 

1868, 

139 

8th 

u 

(Tobey  v.  King)  . 

Ho. 

1859, 

60 

9th 

(( 

(Shaw  V.  Abbott) 

Ho. 

1868, 

139 

9th 

(( 

(Baker  v.  Hunt)  . 

Ho. 

1884, 

378 

Suffolk  County. 

2d  Sen.  Dist. 

(Stimson  v.  Boardman) 

Sen. 

1872, 

171 

2d 

(Jenks  V.  Hayes) 

* 

Sen. 

1874, 

198 

3d 

(King  V.  Park)     . 

Sen. 

1871, 

155 

3d 

(Splaine  v.  McGahey)  . 

Sen. 

1885, 

393 

5th 

(McMahan  v.  McGeough) 

, 

Sen. 

1883, 

370 

6th 

(Wait  et  als.  v.  Ingalls) 

Sen. 

1868, 

133 

2d  Rep.  Dist. 

(Taylor  v.  Carney) 

. 

Ho. 

1875, 

228 

2d 

(Barr  et  als.,  Pets.) 

Ho. 

1876, 

254 

2d 

(Pease  et  als.  v.  Rowell) 

Ho. 

1866, 

108 

3d 

(Anderson  v.  Tewksbury) 

Ho. 

1874, 

199 

3d 

(Bean  v.  Tucker) 

Ho. 

1860, 

89 

5th 

(Bowker  et  als.,  Pets.) 

Ho. 

1876, 

282 

5th 

(Jenkins  v.  Shaw) 

Ho. 

1876, 

266  . 

5th 

(Ordway  et  al.  v.  Woodbury 

et  als.)     . 

Ho. 

1871, 

163 

6th 

(Lothrop  et  als.,  Pets.) 

Ho. 

1858, 

49 

8th 

(O'Connor  v.  Locke)    . 

Ho. 

1878, 

310 

8th 

(Thayer  etal.  v.  Shaw  eioZ 

.) 

Ho. 

1866, 

114 

9th 

(Chappelle  v.  Prince)  . 

Ho. 

1885, 

396 

12th 

(Mulchinock  v.  Jenkins) 

Ho. 

1879, 

319 

12th 

(Osborn  v.  Hallinan)   . 

Ho. 

1877, 

306 

12lh 

(Hayden  v.  Jenkins)    . 

Ho. 

1877, 

306 

13th 

(Holmes  v.  Haskell)    . 

Ho. 

1870, 

144 

14th 

(Bowker  v.  Bond) 

Ho. 

1879, 

320 

IGth 

(Filkios  V.  Spillane)     . 

Ho. 

1879, 

331 

Boston 

(Hinks  and   Cornell  v.   Jones   and 

Conley)    . 

• 

Ho. 

1856, 

27 

VV  ORCESTER   County. 

East  Sen.  Dist 

(Knowlton  v.  Rice) 

• 

Sen. 

1860, 

80 

2d   Rep.  Dist 

.  (Harris  v.  Richardson) 

• 

Ho. 

1883, 

372 

7th 

(( 

(Palmer  v.  Howe) 

• 

Ho. 

1870, 

145 

Town  of  Leominster  ( Haws  et  als.  v.  Darling) 

Ho. 

1853, 

18 

k( 

Blackstone  {In  re  Martin  J.  Steen 

3) 

Ho. 

1853. 

20 

(( 

Uxbridge  (Day  v.  Taft) 

• 

Ho. 

1856, 

35 

TABLE    OF    CASES   NOT    REPORTED.  XXV 


CASES  NOT  EEPOETED. 


Barry  et  al.  v.  Baldwin.     House,  1853. 
Petition  withdrawn  by  parties. 

BiCKFORD,  Dexter  et  al.,  Pets.     (City  of  Worcester.)     House, 

1856. 
Some  petitioners  withdrew,  and  others  failed  to  prosecute  and 
were  given  leave  to  withdraw. 

Blanding  et  al.  v.  Pierce.     House,  1875. 

Election  of  school  committee-man.     Leave  to  withdraw  given  to 
petitioners. 

Brown  v.  Smith.     Senate,  1872. 

Leave  to  withdraw  given  to  petitioner  without  any  statement  of 
reasons. 

BuRNHAM  V.  SowDON.     House,  1879. 
Petitioner  withdrew  the  petition. 

CoLsoN  V.  Taber.     House,  1880. 

Petitioner  failed  to  prosecute  and  was  given  leave  to  withdraw. 

Frothingham  et  al.  v.  Nichols.     House,  1853. 

Leave  to  withdraw  given  to  petitioners  without  any  statement  of 
reasons. 

Fuller  v.  Entwistle.     House,  1882. 

Petition  for  recount  of  votes.     Leave  to  withdraw  given  to  peti- 
tioner without  any  statement  of  reasons. 

HoBART  V.  Morrison.     House,  1883. 

Leave  to  withdraw,  at  request  of  petitioner,  given  to  petitioner. 

Holly  v.  Madden.     House,  1867. 

Petition  withdrawn  by  the  petitioner. 

Homer  v.  Whitney.     Senate,  1872. 

Leave  to  withdraw  given  to  petitioner  without  any  statement  of 
reasons. 

Hutchins  V.  Ayer.     Senate,  1875. 

Leave  to  withdraw  given  to  petitioner  without  any  statement  of 
reasons. 


XXVI  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

Kimball  v.  Kelly.     House,  1879. 

Returned  member  admitted  election  of  Mr.  Kimball,  and  commit- 
tee so  reported. 

Lame  et  al.  v.  Prodty  et  al.     Senate,  1853. 
Remonstrance  was  withdrawn  by  parties. 

Leach  v.  Stevens.     House,  1885. 

Petition  was  withdrawn  by  petitioner. 

Merriam  et  al.  v.  Frost.     House,  1854. 

Case  lieard  and  leave  to  withdraw  given  to  petitioner  without 
any  statement  of  reasons. 

Newell  v.  Daniell.     House,  1870. 

Leave  to  witlidraw  given  to  petitioner  without  any  statement  of 
reasons. 

Prouty  v.  Harwood.     Senate,  1875. 

Leave  to  withdraw  given  to  petitioner  without  any  statement  of 
reasons. 

RouELL,  Pet.     House,  1880. 

The  committee  reported  tliat  election  was  a  tie. 

SoDLE  V.  RoBBiNS.     House,  1882. 

Leave  to  withdraw  given  to  petitioner  without  any  statement  of 
reasons. 

Stearns  v.  Chase.     Senate,  1871. 

Committee  reported  that  petitioner  was   entitled  to  the  seat. 
No  reasons  stated. 

Tower  v.  Danforth.     House,  1880. 

Petitioner  failed  to  prosecute  and  was  given  leave  to  withdraw. 

Van  Duzen  v.  Bryan.     House,  1879 

Leave  to  withdraw  given  to  petitioner  without  any  statement  of 
reasons. 

Williams  v.  Marsh.     House,  1861. 

Leave  to  withdraw  given  to  petitioner  without  any  statement  of 
reasons. 


TABLE  OF  CASES  CITED.  XXVU 


TABLE  OF  CASES  CITED. 


Abbott's  case  (Sen.  Rep.  58,  42  Cong.  2d  Sess.),  284. 

Abington  v.  No.  Bridgewater  (28  Pick.  170,  176),  9,  33,  158,  246,  248,  277. 

Acorn,  The  (2  Abbott,  U.  S.  434,  441,  445), 231,  note,  232. 

Adams'  case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  251),  78,  447,  453. 

Alford  V.  Collins  (20  Pick.  418),  note,  120. 

Andrews  v.  Heriot  (4  Cowen,  516  in  note),  14. 

Ann  Green,  The  (1  Gall.  274),  14. 

Applegate  v.  Eagan  (74  Mo.  258),  364,  note. 

Arnold  v.  Champney  (121),  215,  219,  220,  224,  227,  328,  375,  381,  385. 

V.  Lea  (Clarke  &  Hall.  601),  211,  note. 
Ashfield  case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  583),  70  note,  220. 
Attleboro'  Case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  254),  34. 
Atwood  V.  Cobb  (16  Pick.  227,  229),  194,  note. 
Austin  V.  Sweet  (189),  380. 

Bacon  v.  Bench  ley  (2  Cush,  100),  403. 

Bangs  V.  Brewster  (HI  Mass.  384),  248. 

Banks  v.  Walker  (3  Barb.  Ch.,  N.  Y.,  Rep.  438),  232,  note. 

Banuegan  v.  Murphy  (13  Met.  251),  448. 

Barnes  v.  Adams  (2  Bart.  Cong.  Elec.  Cases,  760)  120,  note. 

Barney  v.  McCrcery  (Clark  &  Hall  Cong.  Elec.  Cases,  167),  605. 

Bamum  v.  Gilman  (27  Minn.  466),  286,  note. 

Barr  et  als.  Pets.  (254),  342. 

Barron,  In  re  (1  Brewster,  383),  233,  note. 

Barry  v.  Bennett  (7  Met.  354),  104,  note. 

V.  Lauck  (5  Caldwell,  Tenn.,  588),  345,  note. 
Bartlettv.  Knight  (1  Mass.  430),  15. 
Battls  V.  Price  (2  Pearson,  Penn.,  456),  343,  note. 
Beck  V.  Plummer  (40),  262,  note. 
Belchertown  (Mass.  Elec.  Cases,  C.  S.  &  J.  421),  262. 
Belfast  ca^e  (Fitzherbert  &  Falconer,  603),  85. 

Blanchard  v.  Steams  (o  Met.  298,  302,  304).  246,  403,  406,  408,  423, 424,  426. 
Blandford,  Trustees  in,  v.  Gibbs  (2  Cush.  39),  346,  389. 
Bliss  V.  Amer.  Bible  Soc.  (2  All.  334)  104,  note. 
Bodman  v  Amer.  Tract  Soc.  (9  All.  447),  104,  note. 
Bolton  V.  Good  (12  Vroom,  N.  J.,  296),  344,  note. 
Bourne  v.  City  of  Boston  (2  Gray,  494),  6. 

Boy  den  v.  Shober  (2  Bart.  Cong.  Elec.  Cases,  904,  906),  265,  note. 
Bradford  (1  O'Malley  &  Hardcastle  Elec.  Cases,  35),  305. 
Bridge  v.  Lincoln  (14  Mass.  367),  455. 
Brien  v.  Commonwealth  (5  Met.  508,  513,  514),  448. 


XXVlll       MASSACHUSETTS    ELECTION   CASES 1853-1885. 

Bucknam  v.  Ruggles  (15  Mass.  180),  120,  note. 
Buckner  v.  Fiuley  and  Van  Lear  (2  Pet.  586),  15. 
Burlington  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  460),  262, 
Burt?;.  Babbitt  (174),  189,  196,  217,  288,  380. 

Cambridge  v.  Charlestown  (13  Mass.  501),  9,  12,  161. 

Campbell  v.  Gordon  (6  Cranch,  176-182),  231,  232,  note. 

Cannon  v.  Campbell  (2  Els.  Cong.  Elec.  Cases,  604),  286. 

Canterbury,  2d  (Cliff.  353),  85.  ' 

Capen  v.  Foster  (12  Pick.  492),  367,  403. 

Carpenter  v.  Ely  (4  Wis.  258,  420),  102,  104. 

Carson  v.  McPhetridge  (15  Ind.  327),  283. 

Catlin  V.  Clodding  (4  Mason,  308),  10. 

Cattell  V.  LowTj  (45  Iowa,  478),  194,  note. 

Cessna  v.  Myers  (Smith's  Cong.  Elec.  Cases,  60),  151,  note. 

Chapin  v.  Snow  (96),  102,  219,  328,  385. 

Chapman  v.  Ferguson  (1  Bart.  Cong.  Elec.  Cases,  267),  103,  note. 

Charlestown  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  518),  262. 

Chester,  case  of  (Mass.  Cont.  Elec,  Cases,  C.  S.  &  J.  664),  169,  373,  389. 

Christ  Church  v.  Pope  (8  Gray,  140),  255,  note,  346. 

Clapp  V.  Sherman  (307),  369. 

Claridge  v.  Evelyn  (5  B.  &  A.  81),  84. 

Clark,  In  re  (18  Barb.,  N.  Y.,  444,  446),  231,  note. 

V.  Board  of  Examiners,  Hampden  County  (126  Mass,  282, 283,  285),  103,  note, 

104,  105,  365,  note,  456. 
V.  Board  of  Supervisors  (27  111.  305),  345,  note. 
V.  Robinson  (88  Ml.  498),  103,  note,  194,  note,  195,  note. 
Cleland  v.  Porter  (74  111.  76),  467. 
Clements'  case  (Bart.  Cong.  Elec.  Cases,  366),  265,  note. 
Cobb  V.  Lucas  (15  Pick.  7,  9),  98. 
Cochran  v.  Boston  (4  All.  177),  280. 
Cockennouth  case  (18  Journ.  673),  85. 
Coffey  V.  Edmunds  (58  Cal.  521,  note),  194,  362,  note. 
Coggswell  V.  McNeil  (108),  219,  328,  385. 
Colchester  (Peckwell,  I.,  503,  506,  507),  211. 
Coleman,  In  re  (15  Blatch.  406,  422),  232,  note. 
Collins  V.  Douglas  (1  Gray,  167),  103,  note,  125. 

V.  Huff  (63  Geo.  207),  120,  note. 
Commonwealth  v.  Ayer  et  als.  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  674)  262. 

V.  Beckley  (3  Met.  330),  99,  note. 

V.  Cluley  (56  Pa.  St.  270),  283. 

V.  Fowler  (10  Mass.  290,  301),  449. 

V.  Gormley  (133  Mass.  580),  103,  note. 

V.  Hamilton  (15  Gray,  480),  103,  note,  459. 

V.  Hawkes  (123  Mass.  525),  445. 

V.  Holmes  (17  Mass.  336,  340),  447,  448. 

V.  Johnson  (8  Mass.  87),  448, 

V.  Kelleher  (115  Mass,  103),  280. 

V.  Kirby  (2  Cush.  577),  449. 

V.  Knowlton  (2  Mass.  530),  448. 

V.  Leary  (1  Brewster,  270,  272),  231,  232,  note. 

V.  Lee  (1  Brewster,  Penn.,  273),  233,  note. 

V.  McCarty  (14  Gray,  18),  448. 

V.  Morgan  (107  -Mass.  199),  104,  note. 

V.  O'Baldwin  (103  Mass.  210),  103,  note. 

V.  O'Hearn  (132  Mass.  553),  103,  note. 

V.  Paper  (1  Brewster,  Penn.,  263),  232,  note. 


TABLE    OF    CASES    CITED.  XXIX 

Commonwealth  i\  Parmenter  (101  Mass.  211),  99. 

V.  Perkins  (1  Pick.  388),  98. 

V.  Sheriff  (1  Brewster,  Pa.,  184),  231. 

V.  Smith  (132  Mass.  289,  note,  296),  58,  263,  343,  365,  note,  461. 

V.  White  (8  Pick.  453),  448. 

v.  Wollper  (3  Ser.  &  R.,  Penn.,  29),  364,  note. 
Contested  Elections  (1  Brews.  130),  231. 
Cook  V.  Darling  (18  Pick.  393),  232,  note. 
Coolidge  V.  Brigham  (1  Allen,  333,  335),  120,  note. 
Crawford  v.  Dunbar  (52  Cal.  36),  286,  note. 

V.  Spencer  (8  Cush.  418),  104,  note,  125. 
Cregg,  ex  parte  (2  Curtis,  C.  S.,  98),  230. 

Dana  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  551),  262. 

Danvers  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  648,),  362. 

Dartmouth  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  465),  69. 

Davis  V.  Murphy  (177),  236,  261,  325,  330. 

Day  V.  Taft  (35),  354. 

Dearborn  v.  Ames  (8  Gray,  1,  14),  447. 

Dike  r.  Story,  7  All.  349),  448. 

Dishon  r.  Smith  (10  Iowa,  212),  343,  note. 

Doty  V.  Graham  (5  Pick.  487),  120,  note. 

Dresden  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  201),  151,  note. 

Drinkwater  v.  Deakin  (L.  R.  9  C.  P.  626)  285,  note. 

Druliner  v.  State  (29  Ind.  308),  364,  note. 

Dryden  v.  Swinburne  (20  W.  Virg.  89),  286,  note. 

Du  Page  County  v.  People  (65  111.  330),  467. 

Duncan  v.  Course  (1  So.  Car.  Const.  Rep.  100),  15. 

Dunstable  (Mass  Cont,  Elec.  Cases,  C.  S.  &  J.  15),  354. 

Dwyer  w.  Winten  (126  Mass.  186),  103,  note. 

Eames  v.  Johnson  (4  All.  382),  264,  note. 

Easthampton  (Mass.  Cont.  Elec.  Cases,  C  S.  &  J.  471),  262. 

Egglestou  V.  Strader  (2  Bart.  Cong.  Elec.  Cases,  897),  120,  note. 

Election,  Supervisors  of  (114  Mass.  247),  428. 

Elliott  V.  Willis  (1  Allen  461),  120,  note. 

Fay,  Pet.  (15  Pick  243),  447. 

Fife  case  (1st  Luders,  455),  85. 

First  Parish,  etc  ,  v.  Steams  (21  Pick.  148,  154,  155),  255,  note. 

Fish  V.  Collins  (21  La.  An.  289),  286,  note. 

Fiske  V.  Chester,  Inhabs.  of  (8  Gray,  506,  508) ,  160,  427. 

Fitchburg  v.  Winchendon  (4  Cush.  194),  160,  161. 

Fitehhmg  R.R.  Co.  v.  Grand  June.  R.  &  Dep.  Co.  (1  Allen,  552,  557),  118,  119,  note. 

Flintshire  case  (1  Peckwell,  526),  85. 

Force  v.  Batavia  (61  111.  99),  345,  note. 

Foster  v.  Sciirff  (15  Ohio  St.  532,  537),  344,  note,  467. 

Foiike  V.  Trumbull  (1  Bart.  Cong.  Elec.  Cases,  167),  505. 

Fowler  v.  Beebe  (9  Mass.  231,  235)  120,  note,  449. 

Francis,  The  (1  Gall.  614),  11. 

Freeman's  case  (Mass.  Elec.  Cont.  Cases  C.  S.  &  J.  545),  260,  262. 

French  v.  Bacon  (184),  205,  211,  325. 

V.  Nolan  (Irish  Rep.  6  Com.  Law,  464),  285,  note. 
Fryeburg  case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  41),  58. 


XXX  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

Galway  (2  O'Malley  &  Hardcastle,  4G),  285,  note. 

Gates  V.  Neal  (23  Pick.  308),  403. 

Georgetown  case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  599),  23,  32. 

Gerrish  v.  Towne  (3  Gray,  82),  104,  note. 

Getchell  v.  Moran  (124  Mass,  404),  103  note,  459. 

Gibbons  v.  Sheppard  (2  Brewster  Penn.,  74),  232. 

Giddings  v.  Clark  (Smith  Cong.  Elec.  Cases,  C.  S.  &  J.  91),  265,  note 

Gilliland  v.  Schuyler  (9  Kan.  569),  151,  note. 

Gilmore  r.  Holt  (4  Pick,  258),  343,  note. 

Gladhill,  Pet.  (8  Met.  168,  170),  448. 

Goodrich  v.  Weston  (102  Mass.  362,  364),  265,  note. 

Greene  v.  Bridgman  (216),  227,  259,  380. 

Greene  v.  Greene  (11  Pick.  415),  158,  161. 

Griffin  r.  Rising  (11  Met.  339),  389. 

Gullck  V.  New  (14  Ind.  93),  285,  note. 

Gunter  v.  Wiltshire  (Smith  Cong.  Elec.  Cases,  233),  103,  note. 

Hadley  v.  Albany  (33  N.  Y.  603),  263,  note. 
Hall  V.  Tufts  (18  Pick.  455),  103,  note. 
HaUcttw.  Bassett  (100  Mass.  167),  278,  279. 
Hampshire  v.  Franklin  (16  Mass.  76,  88),  447. 
Harden  v.  Colquitt  (63  Geo.  207),  120,  note. 
Harris  v.  Richardson  (372),  382. 

V.  Whitcomb  et  als.  (4  Gray,  433),  404,  423. 
Hartt  V.  Harvey  (32  Barb.,  N.  Y.,  55),  263,  note. 

Harvard  College  v.  Gore  (5  Pick.  370,  374,  377),  159,  160,  246,  248,  249,  277,  408,  409 
Haskell  v.  Closson  (233),  261,  331. 
Haven  v.  Foster  (9  Pick.  112),  15. 
Hawes  v.  Miller  (56  Iowa,  395),  194,  note. 
Haws  V.  Darling  (18),  354. 
Haynes  ».  Hillis  (300),  262,  note,  264,  note,  382. 
Henshaw  v.  Foster  (9  Pick.  312),  355,  note. 
Herring  v.  Boston  Iron  Co.  (1  Gray,  134),  104,  note. 
Ilillman  v.  Flanders  (338),  2G2,  note,  382. 
Hitchcock  V.  Aicken  (1  Caities,  400),  15. 
Hobbs  V.  Bartholmesz  (182),  219,  328,  385. 
Hogan  V.  Pile  (2  Bart.  Cong.  Elec  Cases,  281,  287),  187,  note. 
Holliston  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.,  297),  262. 
Holman's  case  (Mass.  Elec.  Cont.  Cases,  C.  S.  &  J.,  647),  279. 
Holmes  v.  Greene  et  als.  (7  Gray,  299,  300),  153,  249,  250,  280,  407. 
Home  V.  Home  (9  Iredell's  Law  Rep.  99),  6. 

(9  Iredell's  L.  Rep.  99-108),  14. 
Hood  V.  Potter  (217),  328,  384,  385. 
Hope  case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.,  71),  211. 
Hopkinton,  case  of  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.,  654),  169,  389. 

(Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.,  6),  354. 
Howe's  case  (3),  354. 

Howland  v.  Leach  (11  Pick.  151,  154),  194,  note. 
Hulseman  v.  Rems  (41  Penn.  St.  396),  284,  note. 
Humphrey  i\  Kingman  (5  Met.  162,  165,  168),  403,  406,  455. 

Indian  Chief  (3  Rob.  12),  11, 

Ineligible  candidates  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.,  496),  84,  285,  note. 

"  Inhabitant"  (5  Met.  588),  31. 

Jameson  v.  Isaacs  (12  Verm.  611,  613),  98. 

Jefferson,  Inhabitants  of  v.  Inhabitants  of  Washington  (19  Maine,  293),  16. 


TABLE    OF    CASES    CITED.  XXXI 

Jenkins  r.  Shaw  (266),  354. 
Jennison  v.  Hapgood  (10  Pick.  77),  11,  33,  279. 
Jochumsen  v.  Suffolk  Savings  Bank  (3  Allen,  87),  232,  note. 
Johnson  v.  Cole  (31),  58,  232,  note. 

V.  Ellison  (4  Monr.  523),  98. 
Jones  V.  Gridley  (20  Kansas,  581),  343,  note. 

Keeler  r.  Robertson  (27  Mich.  116,  129),  195,  note,  263,  note. 

Keer  v.  Trego  (47  Penn.  St.  292),  263,  note, 

Keith  V.  Majhew  (239),  354. 

Keller  r.  Chapman  (34  Cal.  63a),  120,  note. 

Kidderminster  (2  O'.Malley  &  Ilardcastle's  Elec.  Cases,  177),  305. 

Kimball  v.  Tilton  (315),  382,  393. 

Kincaid  v.  Howe  (10  Mass.  203,  205),  98,  99. 

King  V.  Bedford  (6  East.  356),  120,  note. 

V.  Hughes  (5  B.  &  C.  886),  449. 

V.  Manly  (Cooper,  537),  84. 

V.  Patteson  (4  B.  &  Ad.  9),  449. 

V.  Tizzard  (9  B.  &  C.  418),  449. 

r\  Withers  (E.  T.G.  2),  84. 
Kingsford  v.  Hood  (105  Mass.,  495),  103,  note. 
Kirk  V.  Rhoads  (46  Cal.  398,  403,  407),  364. 
Knowles,  ex  parte  (5  Cal.  300),  231,  note. 

Lafayette  r.  State  (69  Ind.  218),  343,  note. 

Lanesborough  and  New  Ashford  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  191),  262. 

Lee  V.  Rainey,  (Smith  Cong.  Elec.  Cases,  589),  103,  note. 

Lee  V.  State  (49  Ala.  43),  120,  note. 

Light  V.  State  (14  Kansas,  489),  344,  note. 

Lippincott  v.  Paria  (92  III.  24),  120,  note. 

Lombard  v.  Oliver  (7  Allen,  155,  157),  249,  425. 

(3  Allen,  1),  422. 
Luce  V.  Mayhew  et  als.  (13  Gray,  83,  85),  420,  458. 
Lyman  case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  236),  98,  102. 
Lyman  v.  Fiske  (17  Pick.  231,  234),  113,  160,  248,  249. 

Macomber  v.  Fisher  (311),  385. 

Macy  V.  Raymond  (9  Pick.  285) ,  283,  note. 

Malary  v.  Merrill  (Clarke  &  Holl.  328),  211. 

Maiden  case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  213),  58. 

Marchant  v.  Langworthy  (6  Hill,  N.  Y.  646) ,  343,  note. 

Marsh  v.  Hutchinson  (2  Bos.  &  Pul.  230,  in  note),  10. 

Marshall  County  v.  Cook  (38  111.  44),  345,  note. 

Maxwell  r.  Cannon  (Smith  Cong.  Elec.  Cases,  182),  286,  note. 

IMcCarthy  v.  Marsh  (5  N.  Y.  263),  232,  note. 

McCoffln  (5  S.awyer,  630),  232,  note. 

McCraw  v.  ITanalson  (4  Caldwell,  Tenn.,  34,  39),  264,  note,  343,  note. 

McDaniel  v.  King  (5  Cush.  469),  9,  161. 

McGibbons  v.  Walden  (289),  317,  354,  380. 

McKenzic  v.  Rraxton  (Smith.  Cong.  Elec.  Cases,  19,  22,  25),  103,  note,  104,  264,  note. 

McKune  v.  Wcller  (11  Cal.  49),  344,  note. 

McManus,  Pet.  (215),  352,  373,  381. 

McPike  V.  Pen  (51  Mo.  63),  345,  note. 

Mercer  v.  Chase  (9  Allen,  242),  232,  note. 

Merriam  v.  Batcheldcr  (294),  385. 

Miller  v.  Stevens  (100  Mass.  518),  104,  note. 

Millholland  r.  Bryant  (39  Ind.  363),  364,  note. 


XXXll         MASSACHUSETTS    ELECTION   CASES 1853-1885. 

Milward  v.  Thatcher  (2  T.  R.  81),  449. 

Monroe  v.  Cummings  (212),  381. 

Monson  v.  Palmer  (8  Allen,  552),  248,  3{9. 

Morgan  v.  Gloucester  City  (15  Vroom,  N.  J.,  137,  142),  345,  note. 

Morse  v.  Lonergan  (288),  291,  342,  380. 

Morton,  Marcus,  case  of  (1  Met.  1),  453. 

Mt.  Washington,  Sheffield,  etc.  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  46),  354. 

Mutual  Ins.  Co.  v.  Tisdale  (91  U.  S.  238),  231,  note. 

Myers  r.  Moffet  (1  Brewster,  Penn.  230),  231,  note. 

New  Ashford,  Lanesborough  and  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  191),  262. 
New  Jersey  Cont.  Elec.  (16  Cong.  Globe  App.  455),  150,  note. 

case  (1  Bart.  Cong.  tlec.  Cases,  19),  151,  note. 
Newcomb  v.  Holmes  (57),  262,  note. 

New  Marlborough  case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  323),  187,  note,  220. 
Newland  v.  Graham  (1  Bart.  Cong.  Elec.  Cases,  C.  S.  &  J.  5),  151,  note. 
Newton  v.  Newell  (26  Minn.  629),  195,  note. 
Norris,  ex  parte  (8  S.  Car.  408),  120,  note. 
North  Chelsea  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  644),  363. 

O'Connor  v.  Locke  (310),  316,  325. 
Opinions  of  Justices : 

(5  Met.  587,  588,  589),  7,  9,  246,  247,  248,  277. 

(5  Met.,  596),  443. 

(10  Gray,  613),  56,409. 

(15  Pick.  575,  578),  264,  note. 

(18  Pick.,  575 j,  346. 

(3  Pick.  517),  451. 

(11  Pick.  538,  540),  454. 

(117  Mass.  599),  432. 

(9Cush.  604),443. 

(3Cush.  584),448. 

(122  Mass.  594,  598),  435,  455. 

(122  Mass.  600,  604),  441,  449. 

(124  Mass.  596),  453. 

(136  Mass.  583),  468. 

(5  Peters,  57),  15. 

(38  Me.  597),  284. 

(70  Me.  560,  566),  365,  note. 

(64  Me.  596),  460. 

Palmer  v.  Howe  (145),  260. 

Parker  v.  Kett  (1  Ld.  Raym.  658,  660),  120,  note. 

Patrick  v.  Smith  (120  Mass.  510),  103,  note. 

Peabody  v.  Brown  (10  Gray,  45),  103,  note,  125. 

Pease,  Pet.  (374),  377,  381. 

Pease  t>.  Rowell  (108),  260,  284,  354. 

Penn.  (Twenty-sixth  Ward  Election,  35  Leg.  Inst.  420),  103,  note. 

People  V.  Bates  (11  Mich.  362),  364,  note. 

V.  Carrigue  (2  Hill,  N.  Y.,  93),  449. 

V.  Cicotte  (16  Mich.  283),  105,  note,  149,  note,  150,  note,  195,  note,  460. 

V.  Cluley  (50  Penn.  270),  286,  note. 

V.  Clute  (50  N.  Y.  451,  466),  284,  285,  note. 

V.  Cook  (14  Barb.,  N.  Y.,  299,  et  seq.),  99,  460. 

V.  (4  Selden,  67),  102,  124,  460,  467. 

V.  (8  N.  Y.  67),  103,  note,  120,  note,  460. 

V.  Cowles  (13  N.  Y.  350),  343,  note. 


TABLE    OF    CASES    CITED.  XXXlll 

People  V.  Ferguson  (8  Cowen,  102,  106,  107),  102,  103,  note,  124,  460. 

V.  Hartwell  (12  Mich.  508),  313,  note,  467. 

V.  Higgins  (3  Mich.  II.  233),  124,  460, 

V.  Milliard  (29  111.  413),  120,  note. 

V.  Holden  (28  Cal.  123),  70,  note. 

V.  Kiiduff  (15  III.  492),  364,  note. 

V.  Love  (63  Barb.  N.  Y.  535),  195,  note. 

V.  Mattcson  (17  III.  167,  169),  103,  note.  194,  note. 

V.  McGowan  (77  111.  614),  231. 

V.  McManus  (34  Barb.,  N.  Y.,  020),  103,  note,  120,  194,  365,  note. 

V.  Miller  (16  Mich.  56),  263,  note. 

V.  Molitor  (23  Mich.  341,  342),  286,  note,  460. 

V.  Nostrand  (46  N.  Y.  375,  381),  449. 

V.  Pease  (27  N.  Y.  45,  81),  149,  note,  151,  note,  172,  note,  231,  note,  460. 

17.  (30  Barb.,  N.  Y.,  588,  604),  231  note. 

V.  Peck  (11  Wend.,  N.  Y.,  604),  343,  note,  467. 

V.  Runkel  (9  Johnson,  N.  Y.,  147),  343. 

V.  Saxton  (22  N.  Y.  309,  311),  70,  note;  105,  124,  195,  note. 

V.  Scamans  (5  Denio,  409),  102,  103,  note,  460. 

V.  (8Cowen,N.Y.  407),  194,  note. 

V.  Smith  (45  N.  Y.  772,  779),  460. 

V.  Tisdale  (1  Doug.,  Mich.,  59),  124,  460. 

V.  Wilson  (62  N.  Y.  186),  467. 

V.  Witherell  (14  Mich.  48),  343,  note. 
Petersilea  v.  Stone  (119  Mass.  465),  119,  note. 
Phoeni.x  Bank  v.  Hussey  (12  Pick.  483),  15. 
Pierce  v.  Brown  (92) ,  354. 

Plumner  v.  Brandon  (5  Iredell's  Rep.  Eq.  190),  14. 
Plympton  (Mass.  Cont.  Elec.  Cases,  C  S.  &  J.  643),  262. 
Poole  (2  O' Mai  ley  &  Hardcastle  Elec.  Cases,  123),  305. 
Pope  V.Blake  (320),  328. 

Pratt,  James,  Jr.,  case  of  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  236),  219,  328,  385. 
President,  The  (5  Robinson,  277),  13. 
Preston  v.  Culbertson  (58  Cal.  198),  note,  232. 
Price  V.  Baker  (41  Ind.  572),  285. 
Putnam  v.  Johnson  (10  Mass.  488),  248. 

Queen  v.  Boscawen  (E.  T.  13  Anne),  84. 
Quirk  V.  Macdonald  (229),  332. 

Rand  v.  Wilder  (11  Cush.  294),  464. 

Reed  v.  Kncass  (2  Paw.  (Phil.),  366),  149,  note,  150. 

Rceder  v.  Halcomb  (105  Mass.  94),  249. 

Regina  v.  Avery  (18  Q.  B.  576),  459. 

V.  Bradley  (3  Ellis  &  Ellis,  634),  103,  note. 

V.  Mayor  of  Tcwksbury  (L.  R.  3  Q.  B.  629),  285,  note. 
Registry  Acts,  In  re  (2  Brewster  (Penn.),  138),  232,  note. 
Rehoboth  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  48),  220. 
Res  publica  v.  Ray  (3  Ycates  (Penn.),  66),  149,  note. 
Residence  of  Students  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  511),  7. 
Rex  V.  Bridge  (1  M.  &  S.  76),  85. 

V.  Hawkins  (10  East.  211),  84. 
Reynolds  v.  New  Salem  (6  Met.  340),  464. 

Richards'  case  (Clark  &  Hall  Cong.  Elec.  Cases,  157),  265,  note. 
Ritchie  V.  Putnam  (13  Wend.  524),  232,  note. 
Roller  V.  Truesdale  (26  Ohio.  St.  586),  364,  note. 
Rump  V.  Commonwealth  (30  Penn.  St.  475,  477),  231,  note. 


XXXIV       MASSACHUSETTS    ELECTION   CASES 1853-1885. 

Sampson  v.  Waterman  (253),  381,  385. 
Sargent  v.  Adams  (3  Gray,  72),  note,  104. 

V.  Southgate  (5  Pick.  311),  158. 
Satterlee  v.  San  Francisco  (23  Cal.  314),  2S6  note. 
Saunders  v.  Haynes  (13  Cal.  145,  153),  283,  286,  note. 
Scanlan  v.  Wright,  (13  Pick,  523),  104,  note. 
Scribner  v.  Keyes  (296),  325. 

Sears  v.  Boston  (1  Met.  250,  252,  253),  10, 159,  247,  249,  279,  408,  409 
Secord  v.  Foutch  (44  Mich.  89),  345  note. 
Sharon  case  (Mass.  Cent.  Elec.  Cases,  C.  S.  &  J.  502),  260. 
Shaw  V.  Buckminster  (221),  328,  330. 

V.  Shaw  (98  Mass.  159,  160),  246,  248. 
Sheehan's  case  (122  Mass.  445),  444,  449. 

Sheffield  and  Mt.  Washington  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  46),  354. 
Shelburne  v.  Rochester  (1  Pick.  470),  103,  note. 
Sherman  v.  Torrey  (99  Mass.  472),  465. 

Shrewsbury,  case  of  (Mass.  Cont.  Elec.  Case,  C.  S.  &  J.  275),  169,  389. 
Simpson  v.  Dix  (131  Mass.  179),  99. 
Slate  V.  Green  (226),  259,  373,  380,  381. 
Smith  V.  Brown  (2  Bartlett,  395),  284,  286,  note. 

V.  Coney  (6  Vesey,  42),  102. 
Somerset  case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  576),  34,  284,  285,  note. 
Somerville  v.  Somcrville  (5  Vesey  Rep.  789),  6. 

V.  Somerville  (5  Vesey,  756),  11. 
Southwai-k  case  2d  (Cliff.  259),  233. 
Southworth,  2d  (1  Cliff.  130),  85. 
Sowlc  V.  Sowle  (10  Pick.  376),  note,  103. 

Spaulding  v.  Mead  (Clark  and  Hall,  Cong.  Elec.  Cases,  157),  note,  186,  note,  265. 
Spratt  V.  Spratt  (4  Peters,  407),  230,  332. 
St.  Paul  &  R.  R.  V.  Burton  (HI  U.  S.  788),  232,  note. 
Stackpole  v.  Arnold  (11  Mass.  27,  30),  103,  note. 
Standish  case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.,  82),  211. 
Stanly  v.  Manly  (35  Ind.  275),  364,  note. 
State  V.  Adams  (65  Ind.  393) ,  364,  note. 

V.  Anderson  (1  Coxe,  N.  J.  318),  284,  286,  note. 

V.  Chesapeake  (7  Cranch,  420),  231. 

V.  Cogswell  (8  Ohio  St.  620) ,  344,  note. 

V.  Gates  (43  Conn.  538),  103. 

V.  Giles  (1  Chand.  Wis.  112),  283,  286,  note. 

V.  Goetze  (22  Wis.  363),  344,  note,  467. 

V.  Goldthwait  (16  Wis.  146),  194,  note. 

V.  Griffey  (5  Neb.  161),  105,  note. 

V.  Hallett  (8  Ala.  (new  series)  159),  11. 

V.  Hil mantel  (23  Wis.  422),  149,  note,  150,  note,  151,  note. 

V.  Insurance  Co.  (7  Cranch.  421),  231,  note. 

V.  Jones  (19  Ind.  356),  467. 

V.  McKinney  (25  Wis.  416),  344,  note. 

V.  Clin  (23  Wis.  309,  310),  149,  note,  151,  note. 

V.  Orvis  (20  Wis.  235),  343,  note,  344,  note. 

V.  Pierce  (35  Wis.  93),  70,  note. 

V.  Smith  (14  Wis.  497),  283,  286,  note. 

V.  Tierney  (23  Wis.  430),  286,  note. 

r.  Vail  (53  Mo.  97),  286,  note. 

V.  Walsh  (7  Mo.  Aff.  Cases,  142),  286,  note. 

V.  Wasson  (99  Ind.  261),  364,  note. 

V.  Young  (4  Iowa,  561),  345,  note. 
Stearns'  case  (Mass.  Com.  Elec.  Cases,  C.  S.  &  J.  217),  78. 


TABLE  OF  CASES  CITED.  XXXV 

Steere'scase  (20),  354. 

Stephens,  ex  parte  (4  Gray,  559),  note,  233. 

Stephens  v.  Wyatt  (IC  B.  Mon.  5i:l),  286,  note. 

V.  People  (89  111.  337),  345,  note. 
Stetson  V.  Gulliver  (2  Cus-h.  494),  265,  note. 
Stimpson  v.  Breed  (257),  301,  381. 

Strobert  v.  Herbert  (2  Ells.  Cong.  Elec.  Cases,  C.  S.  &  J.,  5),  103,  note. 
Strong,  Pet.  (20  Pick.  484),  102,  484,  491,  492,  494,  497,  498,  63,  102,  262,  note,  265, 

note,  376,  381,  4.57,  458,  459. 
Stubbs  V.  Lee  (64  Maine.  195),  449. 
Sublettv.  Bedwell  (47  Miss.  2'33),  283,  note. 
Sudbury  v.  Heard  (103  Mass.,  544),  120,  note. 

V.  Stearns  (21  Pick.,  148),  346. 
Sullivan,  Case  of  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.,  39),  45L 
Supervisors  of  Elections  (114  Mass.  247),  428. 
Sutton  V.  Bowker  (5  Gray,  416),  104. 
Swcpstorr  v.  Barton  (39  Ark.  549),  286,  note. 
Swett  V.  Shumway  (102  Mass.  365),  104. 

Taft  V.  Cole  (45),  365,  note. 

Talkington  v.  Turner  (71  111.  234),  103,  note. 

Taylor  v.  Carney  (228),  259,  325,  380. 

V.  Mayor  of  Bath  (M.  15,  G.  2),  84. 
Thatcher  v.  Phinney  (7  All.  146),  427. 
Thayer  v.  Boston  (15  Gray,  347),  102,  104. 
Thompson's  case  (1  Wendell,  43),  7. 

Thorndike  v.  Boston  (1  Met.  242,  243,  245,  246,  247),  8,  9,  246,  247,  248,  249. 
Tipperary  (3  O'Mallcy  &  Ilardcastle,  41),  285,  note. 
Tobey  v.  King  (60),  262,  note. 
Torrey  v.  Millbury  (21  Pick.  64),  264,  note. 
Townscnd's  case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.,  642),  262. 
Trumbull,  In  re  (1  Bart,  Cong.  Elec.  Cases,  167),  505. 
Trastees  School  District  v.  Gibbs  (2  Cush.  39),  255,  note. 
Tucker  ?'.  Seaman's  Aid  Soc.  (7  Met.  188),  104,  note. 
Turner  v.  Baylies  (Clark  &  Hall  Cong.  Elec.  Cases,  234),  99. 

V.  Buckfleld  (3  Greenl.  229),  17. 

V.  Drake  (71  Mo.  2S5),  364,  note. 
Turney  v.  Marshall  (1  Bart.  Cong.  Elec.  Cases,  167),  505,  note. 
Twenty-sixth  Ward  Election  (35  Leg.  Int.,  Penn.,  420),  103,  note. 

United  States  v.  the  Penelope  (2  Peters  Ad.  Dec.  450),  113. 

V.  Wright  (1  McLean,  509),  449. 
United  States  Officers,  ineligibility  of  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  28-30), 
447,  453. 

Vallindigham  v.  Campbell  (1  B.art.  Cong.  Elec.  Cases,  223),  151,  note. 

Van  Rensselaer  v.  Van  Allen  (Clarke  &  Hall,  73),  211. 

Venus  (8  Cranch,  253,  283),  12,  14. 

Vosc  V.  Deane  (7  Mass.  280,  282),  263,  note. 

Wait  t'.Ingalls  (133),  279,  354. 

Waite  V.  Woodward  (10  Cush.  143),  401,  406,  423. 

Warder  v.  Arrell  (2  Wash.  298),  16. 

Washburn  v.  Ripley  (Cong.  Cont.  Elec.  681),  84. 

Webster  case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  526),  32. 

Weld  V.  Boston  (126  Mass.  166,  note),  6,  note. 

West  V.  Ross  (53  Mo,  350),  364,  note. 


XXXvi       MASSACHUSETTS    ELECTION   CASES 1S53-1885. 

West  Boylston  v.  Sterling  (17  Pick.  234),  279. 
Weston  case  (Mass.  Cont.  Elec.  Cases,  C.  S.  &  J.  67),  389. 
Whitney  v.  Sherburne  (12  All.  HI),  280. 

Wigginton  v.  Pachedo  (1  Ell.  Cong.  Elec.  Cases,  5,  8),  187,  note. 
Wildman  v.  Anderson  (17  Kansas,  344),  362,  note. 
Williams  v.  Bowen  (Clarke  &  Hall  Cong.  Elec.  Cases,  263),  99. 
V.  Lunenburg  School  Dist.  (21  Pick.  75),  465. 
V.  Whiting  (11  Mass.  424),  7. 
Williams,  John,  case  (Mass.  Elec.  Cases,  C.  S.  &  J.  19),  354. 
Willoughby  v.  Smith  (Clark  &  Hall  Cong.  Elec.  Cases,  265),  99, 
Wilson  V.  Brooks  (14  Pick.  341),  454. 
Wood  V.  Bartling  (16  Kansas,  109,  113),  344,  note. 
Woods  V.  Sawin  (4  Gray,  322),  104,  note. 
Worcester  v.  Wilbraham  (13  Gray,  590),  247. 
Worth  V.  Newton  (10  Exch.  247),  449. 
Wright  V.  Boston  (126  Mass.  161),  6,  note. 

V.  Hooper  (100),  219,  328,  385. 
Wrigley  (8  Wend.  134),  13. 
Wyman  v.  Lemon  (51  Cal.  273),  365,  note, 


REPORT   OF   ELECTION    CASES 
IN   MASSACHUSETTS. 


1853-1885. 


EEPORT  OF  ELECTION  CASES  IN  MASSACHUSETTS. 


1853-1885. 


SEN  ATE  — 1  8  53. 


Wattris  Ordway  et  al.  v.  Nathaniel  S.  Howe. 

Hon.   Francis  BRmLEY,  Hon.  Elisha  Murdock  and  Hon.   N.   Lyman 

Strong,  special  committee.  ' 

Senate  Document,  No.  132,  April  28,  1853.     Report  by  Messrs.  Brinley 
and  Murdock  ;  —  Mr.  Strong  dissenting. 

Eligibility  of  Senator.  Inhabitancy.  To  be  eligible  to  election  as  senator  under 
the  constitution,  the  person  must  have  been  an  inhabitant  of  the  Commonwealth  for 
the  space  of  five  years  immediately  preceding  the  election ;  and  the  word  "  inhabi- 
tant" in  this  connection  means  the  same  as  "resident." 

Same.  Domicile.  Two  things  must  concur  to  constitute  inhabitancy  or  domi- 
cile :  first,  residence,  and  second,  the  intention  to  make  it  a  home  —  the  fact  and  the 
intent.  Residence  for  however  long  a  time  continued  will  not  constitute  domicile, 
unless  accompanied  with  the  Intention  of  making  it  a  home,  nor  will  the  shortness 
of  time  in  which  the  new  home  is  enjoyed,  defeat  the  acquisition  of  domicile,  when 
accompanied  with  the  intention. 

Same.  Every  person  has  a  domicile ;  he  can  have  but  one  at  the  same  time  for 
the  same  purpose.  The  place  of  birth  is  the  domicile,  if  at  the  time  of  birth  it  is  the 
domicile  of  his  parents.  The  domicile  arising  from  birth  remains  until  clearly 
abandoned,  and  another  acquired;  and  so  each  successive  domicile  continues  until 
changed  by  the  acquisition  of  another. 

Same.  Evidence.  Less  evidence  is  necessary  to  establish  the  intention  of  remain- 
ing, where  the  person  returns  to  his  former  domicile,  than  where  he  is  remaining  in 
a  new  place. 

Same.  Upon  the  question  whether  a  person  elected  senator,  Jan.  11,  18i).3,  had 
been  an  inhabitant  of  the  Commonwealth  for  the  space  of  five  years  immediately 
priceding  the  election,  it  appeared  that  he  was  born  and  had  Hvcd  with  his  parents 
in  Haverhill,  Massachusetts;  that  after  leaving  college,  he  returned  there  and 
studied  law;  after  completing  his  legal  studies,  he  removed  to  Michigan,  where  he 
was  admitted  to  the  bar  and  remained  about  ten  years,  visiting,  witli  his  wife,  his 
father  in  Haverhill  as  often  as  every  other  year.  In  1847,  during  one  of  these  visits 
he  expressed  an  intention  of  Hving  East,  without  expressly  stating  in  what  place,  as 
soon  as  he  could  make  arrangements,  and  inquired  about  a  law  office.  He  then 
returned  with  his  wife  to  Michigan,  and  in  the  winter  of  1847-8,  wrote  to  his  relatives 
of  his  intention  to  leave  Michigan,  and  they  expected  him  in  Haverhill,  without  know- 
ing the  probable  time  of  his  arrival.    He  sold  his  real  estate  in  Michigan  in  January, 


4  MASSACHUSETTS    ELECTION   CASES  —  1S53-1885. 

1848,  and  arrived  in  Haverhill  towards  the  end  of  May,  1848,  with  his  wife,  where 
he  joined  his  mother's  family,  and  continued  to  I'eside  Avith  her  to  the  time  of 
election.  He  i-ented  an  office  in  Haverhill  Nov.  28,  1848,  and  continued  to  occupy 
it.  It  was  held  that  on  Jan.  11,  1848,  he  was  not  an  inhabitant  of  the  Common- 
wealth, and  therefore  was  ineligible  to  election  as  senator  Jan.  11,  1853. 

Same.  Laxo  of  Foreign  Domicile.  While  for  some  purposes  the  states  are 
regarded  as  foreign  jurisdictions,  the  principles  of  law  peculiar  to  foreign  domicile, 
will  not  be  applied  in  a  question  of  mere  inhabitancy  as  a  qualification  for  a  seat  in 
the  Senate  under  the  constitution. 

Chas.  Theo.  Russell  for  sitting  member. 


This  case  arose  upon  the  remonstrance  of  Wattris  Ordway  and 
twenty-seven  others,  against  the  right  of  Nathaniel  S.  Howe  to 
retain  his  seat  in  the  Senate,  "  because  said  Howe  had  not  at  the 
time  of  his  election,  been  an  inhabitant  of  this  Commonwealth  for 
the  full  term  of  five  years." 

According  to  the  Constitution  no  person  is  eligible  to  the  office 
of  senator  "  who  has  not  been  an  inhabitant  of  this  Commonwealth 
for  the  space  of  five  years  immediately  preceding  his  election  ;  and 
at  the  time  of  his  election  he  shall  be  an  inhabitant  in  the  district 
for  which  he  shall  be  chosen."  —  Constitution  of  Massachusetts,  c. 
1,§2,  arf.  5. 

Another  important  provision  of  the  Constitution,  which  must  be 
considered  in  this  connection,  is  as  follows  :  "And  to  remove  all 
doubts  concerning  the  meaning  of  the  word  inhabitant,  in  this 
constitution,  every  person  shall  be  considered  as  an  inhabitant, 
for  the  purpose  of  electing  and  being  elected  into  any  office  or 
place  within  tliis  State,  ia  that  town,  district,  or  plantation,  where 
he  dwelleth  or  hath  his  home." —  Chap.  1,  §  2,  art.  2. 

It  will  be  perceived  that  the  language  of  the  remonstrance  is  not 
that  of  the  Constitution,  and  doe's  not  set  forth  the  disqualification 
in  unexceptionable  terms.  But  the  committee  overlooked  this 
inaccuracy  of  phraseology,  and  dealing  with  the  remonstrance  in  a 
liberal  spirit,  notified  the  respective  parties  that  they  would  be 
heard.  They  appeared,  and  the  case  has  been  carefully  examined 
and  decided,  as  early  as  the  pressing  engagements  of  the  com- 
mittee would  permit. 

The  general  election  of  the  last  year  was  held  on  the  second 
Monday  of  November,  the  day  appointed  by  the  Constitution,  it 
being  the  eighth  day  of  that  month.  On  examination  of  the  votes 
for  senators  for  the  District  of  Essex  it  appeared  that  no  choice 
had  been  effected.  Among  the  names  of  the  constitutional  candi- 
dates reported  to  the  Senate  on  the  seventh  of  January  last,  was 
that  of  N.  S.  Howe,  who  had  received  7,390  votes  in  the  District 
of  Essex.     On  the  eleventh  of  that  month,  the  Senate  and  House  of 


OKDWAY    >\    HOWE.       SENATE,    1853.  5 

Representatives  assembled  in  convention  for  the  purpose  of  filling 
the  vacancies  in  the  Senate,  and  the  Hon.  Nathaniel  S.  Howe,  the 
sitting  member,  was  dul}'  chosen  in  convention  as  one  of  the  sen- 
ators for  said  district. 

It  was  in  evidence  before  the  committee  that  Mr.  Howe  lived 
with  his  parents,  in  Haverhill,  from  his  early  youth.  Indeed  the 
evidence  was  satisfactor}^  to  the  committee  that  he  was  born  in 
that  town.  After  leaving  college,  he  returned  to  Haverhill,  and 
entered  his  father's  office  as  a  student  at  law.  Having  completed 
his  legal  education,  he  removed  to  Michigan,  where  he  was  admitted 
to  the  bar.  He  remained  there  about  ten  years,  during  which 
period  he  and  his  wife  were  in  the  habit  of  visiting  his  father's 
family  in  Haverhill,  as  often  as  every  other  year.  During  his  visit 
in  the  autumn  of  1847,  he  made  the  remark  that  he  should  prefer 
living  in  the  East  to  remaining  in  Michigan,  and  that  he  intended 
to  do  so  as  soon  as  he  could  make  arrangements.  It  was  not 
proved  that  he  said  he  intended  to  return  to  Haverhill.  During 
the  same  visit  he  made  inquiry  of  one  person  about  a  law  office. 
Having  completed  his  visit,  he  and  his  wife  returned  to  Michigan. 
In  the  winter  of  1847-8,  he  wrote  to  his  relatives  of  his  intention 
to  leave  Michigan  ;  and  they  were  expecting  him  in  Haverhill, 
without  being  in  possession  of  information  of  the  probable  time  of 
his  arrival.  At  length,  towards  the  end  of  the  month  of  May, 
1848,  he  arrived  in  Haverhill,  with  his  wife,  and  immediately 
became  a  part  of  his  mother's  family,  and  they  continue  to  be  such 
at  this  time.  On  the  28th  of  November,  1848,  Mr.  HoAve  rented 
an  office  in  Haverhill,  and  commenced  the  practice  of  his  profes- 
sion ;  he  still  occupies  the  same  office. 

It  was  proved  that  on  the  29th  of  January,  1848,  Mr.  Howe 
executed  a  deed  of  real  estate  situated  in  Michigan,  in  which  he  is 
described  as  "  of  the  county  of  Hinsdale,  and  State  of  Michigan." 

It  was  also  in  evidence  that  Mr.  Howe's  name  was  not  on  the 
tax-book  of  Haverhill  for  the  year  1848  ;  but  it  appears  on  that 
for  1849. 

Such  is  a  brief  statement  of  the  facts  in  the  case. 

The  committee  do  not  attach  an}'  great  consequence  to  the  cir- 
cumstance that  in  the  deed  alluded  to,  Mr.  Howe  is  described  as 
of  Michigan  ;  nor  should  they,  if  it  had  been  proved,  as  it  was 
not,  that  the  deed  had  been  drafted  by  him.  It  is  quite  conunon 
for  persons  to  describe  them.selves  of  places  other  than  those  of 
their  residence  ;  though  it  certainly  is,  in  some  degree,  at  variance 
with  a  then  fixed  and  settled  intent  of  claiming  to  be  an  inhabitant 
of  Haverhill. 


6  MASSACHUSETTS    ELECTIOX   CASES  —  1853-1885. 

In  the  case  of  Home  v.  Horyie,  9  Iredell's  Law  Reports,  99, 
the  plaintiff  relied  much  upon  the  fact  that  the  deceased,  whose 
domicile  was  in  question,  in  his  last  visit,  had  st^'led  himself  of 
"Anson  County,  North  Carolina."  But  the  court  held  that  resi- 
dence did  not  constitute  a  domicile,  though  it  was  prima  facie 
evidence  of  it. 

So  in  the  case  of  Somerville  v.  Somerville,  5  Vesey's  Rep.  789, 
the  Master  of  the  Rolls  says  that  he  lays  no  stress  whatever  on 
such  a  description  ;  that  it  was  totally  immaterial  how  a  party 
described  himself. 

A  not  dissimilar  view  appears  to  have  been  entertained  by  the 
justice  of  the  supreme  judicial  court  of  this  Commonwealth,  who 
presided  at  the  trial  of  the  recent  case  of  Bourne  v.  The  City  of 
Boston* 

Of  less  importance  is  the  fact  that  the  name  of  Mr.  Howe  did 
not  appear  on  the  tax  book  for  1848.  The  town  clerk  of  Haverhill, 
on  cross  examination,  stated,  that  the  number  of  polls  was  twelve 
hundred  ;  that  it  was  not  an  unusual  thing  for  polls  to  be  omitted 
by  accident ;  that  every  j^ear  there  were  persons  applying  to  have 
their  names  entered  for  a  poll  tax.  This  is  nothing  unusual,  as  is 
well  known  to  every  one  familiar  with  town  affairs,  and  the  omission 
in  this  case,  of  itself,  is  of  no  great  moment.  Indeed,  it  was  a  per- 
fectly natural  circumstance,  as  Mr.  Howe  was  not  in  Haverhill  on 
the  first  of  May,  but  towards  the  close  of  that  month. 

On  the  11th  of  January,  1853,  Mr.  Howe  Avas  elected  by  joint 
ballot,  a  senator  from  the  District  of  Essex. 

Was  he  an  inhabitant  of  this  Commonwealth  "for  the  space  of 
five  years  immediately  preceding  his  election?"  In  other  words 
was  he  an  inhabitant  of  Haverhill  on  the  11th  of  January,  1848? 

The  definition  of  the  word  inhabitant,  as  contained  in  the  Con- 
stitution itself,  has  been  alreadv  aiven. 

In  the  third  article  of  the  amendments  to  the  Constitution ,  made 

*  [Note  by  the  Editors.  In  the  case  of  Weld  v.  Boston,  126  Mass.  16G,  the 
court  held  that,  upon  the  issue  whether  the  plaintiff  had  his  domicile  in  Boston,  as 
claimed  by  the  defendant,  deeds  to  him  as  grantee  or  from  him  as  grantor,  in  which 
lie  was  described  as  of  Boston,  were  admissible  against  him,  —  the  court  saying:  — 
"The  deeds  of  the  plaintiff  in  which  he  described  himself  as  '  of  Boston'  were 
rightly  admitted.  The  recitals  in  such  deeds  were  admissions  by  him  that  he  resid- 
ed in  Boston  and  were  competent.  For  the  same  reasons  the  deeds  to  him  in 
which  he  was  described  as  of  Boston  were  competent.  His  acceptance  of  such  deeds 
without  objection  was  an  implied  admission  of  the  correctness  of  the  recitals. 
Though  of  little  weight,  the  evidence  was  competent."  p.  168.  But  deeds,  let- 
ters or  other  papers  in  which  he  is  described  as  resident  in  another  place,  claimed 
by  him  to  be  his  domicile,  are  inadmissible  in  his  favor.  Weld  v.  Boston,  supra; 
Wright  v.  Boston,  126  Mass.,  161.] 


OUDWAY    V.    HOWE.       SKXATK,    185o.  7 

by  the  Convention  in  1820,  the  qualification  ol"  inhabitancy  is 
somewhat  differentl}'  expressed.  The  right  of  Aoting  is  conferred 
on  the  citizen  who  lias  resided  within  this  Commonwealtli,  and 
tvho  has  resided  within  the  town  or  district,  &c.  In  the  opinion 
of  the  justices  of  the  supreme  judicial  court  on  a  question  submitted 
to  them  by  the  House  of  Representatives,  and  which  may  be  found 
in  5  Metcalf,  ;")88,  and  in  the  Reports  of  Election  Cases  in  JNFassa- 
chusetts  (Cushing,  S.  &  J.)  page  510,  they  saj',  "  we  consider 
these  descriptions,  though  differing  in  terms,  as  identical  in  mean- 
ing, and  that  '  inhabitant '  mentioned  in  the  Constitution,  and 
'  one  who  has  resided,'  expressed  in  tlie  amendment,  designate 
the  same  person.  And  both  of  these  expressions,  as  used  in  the 
Constitution  and  amendment,  are  equivalent  to  the  familiar  term 
domicile,  and  therefore  the  right  of  voting  is  confined  to  the  place 
where  one  has  his  domicile,  his  home,  or  place  of  abode." 

It  is  conceded  that  the  word  resident  is  synonj'mous  with  inhabi- 
ant  ill  the  State  Constitution.  Williariis  v.  Whiling,  11  Mass. 
424. 

In  this  case,  the  court  held  that  an  elector  of  a  representative  in 
Congress  must  have  had  his  home  one  full  3-ear  previous  to  the 
election  in  the  town  where  he  would  vote.  It  was  an  action  by  the 
plaintiff,  against  the  selectmen  of  Dedham,  for  unlawfully  refusing 
to  i)ermit  the  plaintiff  to  vote  ;  and  the  question  was,  where  did  the 
plaintiff  dwell  or  have  his  home  one  year  next  preceding  the  2d  of 
November,  1812?  On  the  28th  of  October,  1811,  the  plaintiff  was 
a  resident  in  Roxbury,  in  the  county  of  Norfolk  ;  just  previous  to 
that  day,  he  had  been  qualified  as  clerk  of  the  courts  for  said  county. 
His  famih'  remained  in  Roxbuiy  until  the  12th  of  November  of  the 
same  3'ear,  when  he  removed  to  Dedham.  From  said  28th  of  Oc- 
tober to  the  said  12th  of  November,  he  boarded  at  a  public  house 
in  Dedham,  that  he  might  be  able  the  more  readily  to  attend  to  his 
duties  as  clerk. 

Under  these  circumstances  the  court  held  that  lie  remained  an 
inhabitant  of  Roxbury  until  the  day  of  his  removal  with  his  famil}', 
and  that  he  did  not  begin  to  be  an  inhabitant  of  Dedham  until  after 
the  second  da\'  of  November,  181 1,  and  was  not  on  that  dav 
entitled  to  vote  in  Dedham,  not  having  been  an  inhabitant  of  that 
town  for  one  year  next  preceding  the  election. 

In  a  familiar  sense,  domicile  may  be  synonymous  with  residence, 
home,  or  dwelling  place  ;  indeed,  some  of  the  authorities  are  to  the 
points  that  residence,  inhabitancy  or  domicile,  are  substantiall}'  the 
same,  and  depend  upon  much  the  same  evidence.  The  matter  of 
Thonijuson,  1  Wendell,  43.  In  a  purely  technical  view,  however, 
there  is  a  distinction. 


8  MASSACHUSETTS    ELECTION    CASES  —  1S53-1885. 

Domicile  is  of  three  sorts  ;  domicile  by  birth,  domicile  by  choice, 
and  domicile  by  operation  of  law.  The  first  is  the  common  case  of 
the  place  of  birth,  clomicilium  originis;  the  second  is  that  which  is 
voluntarily  acquired  by  a  party,  proprio  marts.  The  last  is  conse- 
quential, as  that  of  the  wife  arising  from  marriage.  Story  on  Con- 
flict of  Laws,  sect.  49. 

The  case  of  ThorniUke  v.  The  City  of  Boston,  establishes  the 
points :  that  every  man  must  have  a  domicile  somewhere  ;  that  he 
can  have  but  one  for  the  same  purpose,  at  the  same  time  ;  that  an 
existing  domicile  continues  until  another  is  acquired  ;  and  that  by 
acquiring  a  new  domicile,  a  former  one  is  relinquished. 

In  this  case  the  court  say:  "The  questions  of  residence,  in- 
habitancy, or  domicile  —  for,  although  not  in  all  respects  precisely 
the  same,  they  are  nearl^^  so,  and  depend  upon  much  the  same 
evidence  —  are  attended  with  more  difficulty  than  almost  any  other 
which  are  presented  for  adjudication.  No  exact  definition  can  be 
given  of  domicile  ;  it  depends  upon  no  one  fact  or  combination  of 
circumstances,  but  from  the  whole  taken  together  it  must  be  deter- 
mined in  each  particular  case.  It  is  a  maxim  —  that  every  man 
must  have  a  domicile  somewhere,  and  also  that  he  can  have  but  one. 
Of  course  it  follows  that  his  existing  domicile  continues  until  he 
acquires  another ;  and,  vice  versa,  by  acquiring  a  new  domicile  he 
relinquishes  his  former  one.  From ,  this  view  it  is  manifest  that 
very  slight  circumstances  must  often  decide  the  question.  It  de- 
pends upon  the  preponderance  of  the  evidence  in  favor  of  two  or 
more  places  ;  and  it  may  often  occur,  that  the  evidence  of  facts 
tending  to  establish  the  domicile  in  one  place  would  be  entirely  con- 
clusive, were  it  not  for  the  existence  of  facts  and  circumstances  of 
a  still  more  conclusive  and  decisive  character,  which  fix  it,  beyond 
question,  in  another.  So  on  the  contrary  very  slight  circumstances 
raa}^  fix  one's  domicile,  if  not  controlled  by  more  conclusive  facts, 
fixing  it  in  another  place.  If  a  seaman,  without  family  or  property 
sails  from  the  place  of  his  nativity,  which  may  be  considered  his 
domicile  of  origin,  although  he  may  return  only  at  long  intervals,  or 
even  be  absent  many  3'ears,  yet  if  he  does  not,  by  some  actual  resi- 
dence or  other  means  acquire  a  domicile  elsewhere,  he  retains  his 
domicile  of  origin."     Thorndike  v.  City  of  Boston,  1  Metcalf,  242. 

The  question  —  what  place  is  an}'^  person's  domicile  or  place  of 
abode,  is  a  question  of  fact.  It  is,  in  most  cases,  easil}'  determined 
b}^  a  few  decisive  facts ;  but  cases  may  be  readily'  conceived,  where 
the  circumstances,  tending  to  fix  the  domicile,  are  so  nearly  balanced, 
that  a  slight  circumstance  will  turn  the  scale.  In  some  cases,  where 
the  facts  show  a  more  or  less  frequent  or  continued  residence  in 


OKI) WAY    r.    HOWE.       SENATE,    1S5;J.  0 

two  places,  cither  of  which  would  be  conclusively  considered  the 
person's  place  of  domicile,  but  for  the  circumstances  attending  the 
other,  the  intent  of  the  party  to  consider  the  one  or  the  other  his 
domicile  will  determine  it.  One  rule  is,  that  the  facts  and  intent 
must  concur.  Certain  maxims  on  this  subject  we  consider  to  be 
well  settled,  which  afford  some  aid  in  ascertaining  one's  domicile. 
These  are,  that  every  persou  has  a  domicile  somewhere,  and  no 
person  can  have  more  than  one  domicile  at  the  same  time,  for  one 
and  the  same  purpose.  It  follows  from  these  maxims,  that  a  man 
retains  his'domicile  of  origin  till  he  changes  it,  b}^  acquiring  another  ; 
and  so  each  successive  domicile  continues  until  changed  by  acquiring 
another.  And  it  is  equally  obvious,  that  the  acquisition  of  a  new 
domicile  does,  at  the  same  instant,  terminate  the  preceding  one. 
Opinion  of  Justices  of  Supreme  Judicial  Courts  5  Metcalf,  587. 

In  the  case  of  McDaniel  v.  King,  5  Gushing,  469,  the  ques- 
tion was,  whether  Leavitt,  one  of  the  insolvents,  was  a  resident  of 
the  Commonwealth  within  one  3'ear  next  preceding  the  date  of 
the  petition  of  the  creditors.  The  court  sa}',  "  the  question  of  resi- 
dence or  domicile  is  one  of  fact,  and  often  a  verj'  difficult  one  —  not 
because  the  principle  on  which  it  depends  is  not  very  clear,  but  on 
account  of  the  infinite  variety  of  circumstances  bearing  upon  it, 
scarcely  any  one  of  which  can  be  considered  as  a  decisive  test. 
The  principle  seems  to  be  well  settled  —  that  every  person  nuist 
have  a  domicile,  and  that  he  can  have  but  one  domicile  for  one  pur- 
pose at  the  same  time  ;  it  follows,  of  course,  that  he  retains  one 
until  he  acquires  another,  eo  instanti,  and  by  that  act  he  loses  his 
next  previous  one.  Ahington  v.  N.  Bridgewater,  23  Pick.  170. 
The  actual  change  of  one's  residence,  and  the  taking  up  of  a  resi- 
dence elsewhere  without  an}-  intention  of  returning,  is  one  strong- 
indication  of  change  of  domicile.  Thorndike  v.  Boston,  1  Met.  242. 
The  actual  removal  of  one,  from  another  State  to  this,  leaving  a 
family  therein,  but  with  no  intention  of  returning,  is  a  change  of 
domicile.     Cambridge  vs.  Charlestown,  13  Mass.  501. 

The  court  held  that  it  was  clear  under  the  evidence,  that  Lcavilt 
left  New  Hampshire,  where  he  had  been  in  business,  without  any 
intention  of  returning,  and  he  acquired  a  domicile  in  Massachusetts. 

Another  well  established  rule  is,  that  every  case  must  depend 
upon  all  the  circumstances  connected  with  it,  and  be  determined 
by  them. 

"Actual  residence,  that  is,  personal  presence  in  a  place,  is  one 
circumstance  to  determine  tiie  domicile,  or  the  fact  of  being  an 
inhabitant,  but  it  is  far  from  being  conclusive.  A  seaman  on  a  long 
voyage,  and  a  soldier  in  actual  service,  may  be  respectively  inhabi-; 


10  MASSACHUSETTS   ELECTION    CASES — 1853-1885. 

tants  of  a  place,  though  not  personall}-  present  there  for  years.  It 
depends,  therefore,  upon  many  other  considerations,  besides  actual 
presence.  When  an  old  resident  and  inhabitant,  having  a  domicile 
from  his  birth  in  a  particular  place  goes  to  another  place  or  country, 
the  great  question,  whether  he  has  changed  his  domicile,  or  whether 
he  has  ceased  to  be  an  inhabitant  of  one  place  and  become  an 
inhabitant  of  another,  will  depend  mainly  upon  the  question  to  be 
determined  from  all  the  circumstances,  whether  the  new  residence 
is  temporary  or  permanent  —  whether  it  is  occasional,  for  the  pur- 
pose of  a  visit,  or  of  accomplishing  a  temporary  object,  or  whether 
it  is  for  the  purpose  of  continued  residence  and  abode,  until  some 
new  resolution  be  taken  to  remove.  If  the  departure  from  one's 
fixed  and  settled  abode  is,  for  a  purpose,  in  its  nature  temporary, 
whether  it  be  business  or  pleasure,  accompanied  with  an  intent  of 
returning  and  resuming  the  former  place  of  abode  as  soon  as  such 
purpose  is  accomplished  ;  in  general,  such  a  person  continues  to  be 
an  inhabitant  at  such  place  of  abode,  for  all  purposes  of  enjoying 
civil  and  political  privileges,  and  of  being  subject  to  civil  duties." 
Sea7's  V.  Boston,  1  Metcalf,  250. 

"This  ease,"  say  the  court,  "is  distinguishable  from  that 
of  Thorndike  v.  Boston,  in  this:  that  in  that  case,  at  the 
time  of  the  departure  of  the  plaintiff  from  Boston,  it  was  his 
declared  intention  not  to  return  and  resume  his  residence.  A- 
person  being  at  a  place  is  prima  facie  evidence  that  he  is  domi- 
ciled at  that  place,  and  it  lies  on  those  who  say  otherwise  to  rebut 
that  evidence.  It  may  be  rebutted  no  doubt.  A  person  travel- 
1  ino- ;  on  a  visit ;  he  may  be  there  some  time  on  account  of  his 
health  or  his  business,  &c.  Marsh  v.  Hutchinson,  2  Bos.  and 
Pul.  230,  in  note. 

"  The  place  of  birth  of  a  person  is  considered  as  his  domicile^ 
if  it  is  at  the  time  of  his  birth,  the  domicile  of  his  parents.  This 
is  the  domicile  of  birth  or  nativity,  and  it  is  said  to  be  lost  with 
difficulty  and  recovered  with  ease.  Catlin  v.  Gladding,  4  Mason, 
308. 

Thus,  according  to  Chancellor  Kent,  '^the  circumstances 
requisite  to  establish  the  domicile  are  flexible  and  easily  accommo- 
dated to  the  real  truth  and  equity  of  the  case.  Thus  it  requires 
fewer  circumstances  to  constitute  domicile  in  the  case  of  a  native 
subject  who  returns  to  reassume  his  original  character  than  it 
does  to  impress  the  national  character  on  a  stranger.  The  quo 
animo  is,  in  each  case,  the  real  subject  of  inquiry  ;  and  when  the 
residence  exists  freely  without  force  or  restraint,  it  is  usually  held 
to  be  complete,  whether  it  be  an  actual  or  only  an  implied  resi- 
dence.    1  Kent's  Com.  84. 


ORDWAY    V.    HOWE".       SENATE,  1853.  11 

If  a  man  has  acquired  a  new  domicile  different  from  that  of  his 
birth,  and  he  removes  from  it  with  an  intention  to  resume  his 
native  domicile,  the  latter  is  reacquired,  even  while  he  is  on  his  way, 
in  itinere,  for  it  reverts  from  the  moment  the  other  is  given  up. 
iSfori/  on  Conflict  of  Laws,  sect.  48.  The  Francis,  1  (tal,  614. 
T/ie  Indian  Chief,  3  Rob.  12. 

-V  national  character,  acquired  in  a  foreign  country  by  residence, 
changes  when  the  party  has  left  the  country'  animo  nan  revertendi, 
and  is  on  his  return  to  the  country  where  he  had  his  antecedent 
domicile  ;  and  especially  if  he  be  in  intinere  to  his  native  country' 
with  that  intent,  his  native  domicile  revives,  while  he  is  yet  in 
transitu,  for  the  native  domicile  easily  reverts.  The  moment  a 
foreign  domicile  is  abandoned,  the  native  domicile  is  reacquired. 
Ihid.,  sect.  48. 

Notwithstanding  the  importance  given  to  the  intent  or  animus  of 
the  part}'  —  a  mere  intention  to  remove,  unaccompanied  by  an}' 
act  towards  carrying  the  intent  into  effect,  is  not  sufficient. 

To  prove  a  change  of  domicile  it  must  be  made  to  appear  not 
only  that  the  old  domicile  had  been  abandoned,  but  also  that  a  new 
one  has  been  acquired,  so  that  a  domicile  being  once  fixed  will  con- 
tinue, notwithstanding  the  absence  of  the  part}',  until  there  is  a 
substitution  for  a  new  one.  The  intention  to  abandon,  and  actual 
residence  at  another  place,  if  not  accompanied  with  the  intention 
of  remaining  there  permanently,  or  at  least  for  an  indefinite  time, 
will  not  produce  a  change  of  domicile.  Jennison  v.  Hapgood,  10 
rick.  77.     Somerville  v.  Somerville,  5  Ves.  756. 

It  has  been  decided  in  Alabama,  that  an  intention  to  change  tlie 
domicile,  without  an  actual  removal,  with  the  intention  of  remaining, 
does  not  cause  a  loss  of  the  domicile. 

This  was  held  in  the  case  of  The  State  v.  Hallett,  8  Alabama 
Reports,  new  series,  159.  The  defendant  was  indicted,  found 
guilty,  and  fined  for  voting  at  a  presidential  election,  without  being 
legally  qualified  to  vote.  It  appeared,  that  the  defendant  was  a 
citizen  of  Georgia,  up  to  September,  1843  ;  about  that  time,  being 
in  Alabama,  he  declared  his  intention  to  settle  in  the  State,  if  he 
could  procure  a  particular  site  for  an  iron  foundry.  Between  the 
first  and  fifteenth  of  September,  he  leased  the  site  for  five  years. 
Soon  after  he  commenced  operations,  and  left  for  the  purpose  of 
bringing  his  family  from  Georgia.  He  did  not  reach  Alabama  with 
his  family  until  the  26th  of  November,  1843.  He  established  his 
family  in  Talladega  County,  continued  to  reside  there,  and  on  the 
11th  of  November,  1844,  voted  at  the  presidential  election.  He 
took  legal  advice  as  to  his  right  to  vote,  which  was  in  favor  of  the 


12  3IASSACHUSETTS    ELECTION    CASES 1853-1885. 

right.     On  this  evidence  he  was  found  guilty,  and  the  case  was 
certified  to  the  supreme  court  of  the  State. 

The  court  say,  "  the  mere  intention  to  change  the  domicile,  with- 
out an  actual  removal,  with  the  intention  of  remaining,  does  not 
cause  a  loss  of  the  domicile. 

"  Here  the  facts  were,  that  the  defendant,  being  domiciled  in 
Georgia,  came  to  this  State,  with  the  design  of  settling  here,  and 
manifested  his  intention  of  making  this  State  his  permanent  resi- 
dence, b}'  leasing  a  piece  of  land,  procuring  materials  for  the 
erection  of  a  foundry,  and  going  to  Georgia,  to  bring  his  family. 
These  acts  all  mark,  unequivocally,  his  intention  to  change  his 
residence  from  Georgia  to  this  State.  These  facts,  however,  are 
not  sufficient  to  cause  a  loss  of  the  domicile  he  previously  had.  If, 
on  his  return  to  Georgia,  he  had  died  before  being  able  to  carry 
his  purpose  into  effect,  it  can  admit  of  no  doubt,  the  courts  of 
Georgia,  and  not  of  this  State,  would  have  been  entitled  to  dis- 
tribute his  estate.  The  same  rule  must  have  prevailed,  if  he  had 
died  upon  the  journey  here,  because  until  he  had  actually  reached 
here,  there  would  have  been  no  change  in  fact,  of  the  domicile. 

"  In  one  case,  indeed,  the  intention  to  remove,  has  the  effect  to 
change  the  domicile,  where  one,  by  residence,  has  acquired  a  domi- 
cile, different  from  that  of  his  birth,  and  with  intention  to  resume 
his  former  domicile,  sets  out  on  his  return.  In  that  case,  it  has 
been  held,  that  the  domicile  is  reacquired  from  the  time  he  mani 
fests  such  intention,  {The  Venus,  8  Crauch,  253.)  This  proceeds 
from  the  fact,  that  the  acquired  domicile  was  adventitious,  and  maj' 
therefore  be  thrown  off  at  pleasure." 

It  is  proper  to  add,  that  Judge  Goldthwaitc  dissented. 

The  case  of  Cambridge  v.  Gharlestoion,  13  Mass.  501,  involved 
the  question  of  the  settlement  of  a  pauper  b}'  the  name  of  Ray- 
mond ;  the  family  resided  in  Vermont,  but  the  husband  had  resided 
ten  years  in  Charlestown,  in  this  Commonwealth;  the  court  held, 
that  though  he  had  a  family  in  Vermont,  and  occasionallj'  visited 
them,  it  made  no  difference,  and  that  he  was  chargeable  to  Charles- 
town,  because  he  did  not  consider  Vermont  as  his  home,  but  kept 
his  famil}'  there  onl}^  until  he  could  convenientl}'  remove  them. 
"■  In  the  meantime  he  was  permitted  to  exei'cise  all  the  privileges, 
and  was  subject  to  all  the  duties  of  an  inhabitant  of  Charlestown. 
Had  his  famil}'  resided  on  a  farm  belonging  to  him,  in  another 
toion  within  the  Commonivealth,  there  might  be  some  questior. 
respecting  his  domicile." 

A  mere  intention  to  remove  has  never   been   held   sufficient 
without   some   overt   act ;    being    merely   aja    intention,   residinc 


ORDWAY   V.  HOV7E.       SENATE,   1853.  13 

secretly  and  undistingnishably  in  the  breast  of  the  party,  and  liable 

to  be  revoked  every  hour Something  more  than  mere  verbal 

declaration,  some  solid  fact,  showing  that  the  party  is  in  the  act 
of  withdrawing,  has  always  been  held  necessary  in  such  cases. 
The  President,  5  Robinson,  277. 

In  the  matter  of  Wrigley,  8  Wendell,  134,  it  appeared  that  he 
obtauied  a  discharge  from  the  Recorder  of  New  York  as  an 
insolvent  debtor,  and  the  question  arose,  whether  he  was  an  inhab- 
itant of  New  York  at  the  time  of  presenting  his  petition.  The 
court  say,  ''  although  the  plaintiff  in  error  was  an  inhabitant  of 
New  York  while  he  was  actually  located  there  and  doing  business 
as  a  commission  merchant,  yet  the  moment  he  broke  up  his  resi- 
dence and  sailed  for  his  native  land,  sine  animo  revertendi  he  was 
no  longer  an  inhabitant  of  New  Y''ork,  but  he  resumed  his  domicile 
of  ori<2;in." 

It  may  therefore  be  laid  down  as  a  general  rule,  in  all  questions 
with  regard  to  domicile,  the  chief  point  to  be  considered  is  the 
ow'mus  manendi;  if  there  be  no  intention  of  making  a  fixed  and 
permanent  abode  in  a  foreign  country,  even  a  protracted  residence 
there  will  not  change  the  domicile  ;  as,  e  g.,  where  the  accomplish- 
ment of  a  temporary  purpose  is  the  chief  object  of  the  stay  ; 
while,  on  the  other  hand,  even  the  shortest  residence,  if  with  a 
design  of  a  permanent  settlement,  stamps  the  party  so  residing 
with  the  national  character.  If  the  intention  to  establish  a  perma- 
nent residence  be  once  ascertained,  the  recency  of  the  establish- 
ment, though  it  may  have  been  for  a  day  only,  is  immaterial. 

The  point,  then,  to  be  ascertained  being  the  real  intention  of  the 
party  himself,  no  circumstance  can  be  regarded  as  unimportant 
which  can  in  any  way  tend  to  throw  light  upon  it,  and  the  amount 
of  evidence  required  to  establish  an  animum  manendi,  must,  of 
course,  vary  with  the  circumstances  of  the  particular  case. 

Thus,  upon  the  plainest  principles  of  good  sense,  slighter  evi- 
dence would  be  required  to  make  out  an  animum  manendi  in  the 
case  of  a  man  returning  to  his  own  country,  than  in  the  case  of  the 
same  man  going  to  reside  in  a  foreign  land.  In  the  former  case 
there  is  a  natural  presumption  that  the  party  is  returning  to 
resume  his  original  character  ;  in  the  other  the  natural  presumption 
rather  is,  that  he  is  not  going  for  the  purpose  of  making  his  home 
in  the  foreign  country,  but  rather  of  returning  thence  to  his  own, 
when  he  shall  have  accomplished  the  object  of  his  journey.  Hence 
a  national  character,  acquired  in  a  foreign  country  by  residence, 
changes  immediately  the  party  has  left  such  country  animo  non 
revertendi;  and  this  is  especially  the  case  if   he  have  left  the 


14  MASSACHUSETTS   ELECTION   CASES —  1853-1885. 

foreign  to  returu  to  his  native  countrv-  sine  onhno  revertendi.  In 
such  cases  the  native  domicile  revives,  while  he  is  yet  in  transitu, 
for  it  very  easily  reverts,  and  is  reacquired  the  moment  the  foreign 
domicile  is  abandoned  —  1  Arnnuld  on  Insurance,  98-99. 

Mere  declarations  of  an  intention  to  remove  ought  never  to  be 
relied  upon,  when  contradicted,  or  at  least  rendered  doubtful,  by  a 
continuance  of  that  residence  which  impressed  the  character.  They 
may  have  been  made  to  deceive  ;  or,  if  sincerely  made,  they  may 
never  be  executed.  Even  the  party  himself  ought  not  to  be  bound 
b}'  them,  because  he  may  afterwards  find  reason  to  change  his 
determination,  and  ought  to  be  permitted  to  do  so.  But  when  he 
accompanies  these  declarations  by  acts  which  speak  a  language  not 
to  be  mistaken,  and  can  hardly  fail  to  be  consummated  by  actual 
removal,  the  strongest  evidence  is  afforded  which  the  nature  of 
suct»  a  case  can  furnish      The  Vemis^  8  Cranch,  253. 

Nothing  but  an  actual  i-emoval,  or  a  bona  fide  beginning  to 
remove,  can  change  a  national  character,  acquired  by  domicile. 
Ibid.,  at  page  283. 

Some  of  the  principles  to  be  extracted  from  this  review  of  these 
various  cases  (to  which  the  committee  would  have  referred  by 
citation  onl}',  had  the  argument  beon  addressed  to  a  court  instead 
of  resorting  to  this  popular  form  of  discussion) ,  are  these  :  That 
every  person  has  a  domicile  :  that  he  can  have  but  one,  at  the  same 
time,  for  the  same  purpose  ;  that  the  place  of  birth  is  the  domicile, 
if  it  is  at  the  time  of  the  birth  the  domicile  of  the  parents  ;  that  the 
domicile  of  origin,  which  arises  from  birth  and  connections,  remains 
until  clearly  abandoned,  and  another  taken,  which  pi'oposition  is 
more  fully  considered  in  Andreics  v.  Herio\  4  Cowen,  olG,  in 
note,  and  Phimner  v.  Brandon,  5  Iredell's  Reports  in  Equity, 
190  ;  tliat  the  domicile  of  birth'  is  easily  reacquired  ;  and  that  two 
things  must  concur  to  constitute  a  domicile :  first,  residence,  and 
second,  the  intention  to  make  a  home  —  the  fact  and  the  intent ; 
that  residence  for  however  long  a  time  it  may  be  continued,  cannot 
constitute  a  domicile  without  the  intention  of  permanently  making 
it  a  home,  nor  can  the  shortness  of  time  in  which  the  new  home  is 
enjoyed,  defeat  the  original  acquisition,  when  accompanied  with 
the  intention,  for  in  the  latter  there  would  be  the  factum  et  an>mus  ; 
for  which,  see  also,  Home  v.  Home,  9  Iredell's  Law  Reports, 
99-108  ;   The  Ann  Green.  1  Gal.  274. 

The  committee  consider  it  to  be  established  in  this  case  that 
Mr.  Howe's  domicile  of  origin  was  Haverhill ;  that  he  abandoned 
it  years  ago,  and  acquired  a  domicile  in  Michigan  ;  that  while  in 
Haverhill,  in  1847,  he  expressed  a  preference  for  the  East,  and 


(iKDWAT  r.  HOAVE.     seNatk,   isn:'..  15 

indicated  to  a  few  individuals  an  intention  to  leave  Michigan  wlieu 
he  could  make  his  arrangements  ;  but  it  was  not  in  proof  that  he 
avowed  an  intention  to  return  to  Haverhill,  though  his  relatives 
seemed  to  have  expected  it.  He  made  no  movement  in  furtherance 
of  that  intention  until  the  execution  of  his  deed  of  his  real  estate  in 
Michigan,  on  the  29t]i  of  January,  1848,  even  if  that  circumstance 
can  be  so  construed  ;  his  being  in  Michigan,  at  that  time  was  primct 
fade  evidence  that  he  was  there  domiciled  ;  the  great  overt  act 
indicating  an  intention  to  reacquire  a  domicile  in  Massachusetts^ 
was  his  arrival  in  Haverhill  towards  the  close  of  May,  1848,  which 
was  not  five  years  imraediateh'  prior  to  his  election  to  the  Senate 
by  the  votes  of  the  convention  of  the  two  branches  of  the  legislatiu'e. 

But  in  order  to  admit  the  application  of  the  principles  of  law  in 
regard  to  foreign  domicile  to  this  case,  it  will  be  necessar}'  to  con- 
cede that  the  cases  arising  under  international  law  are  in  point  and 
of  binding  authority,  in  a  question  of  mere  inhabitancy  as  a  quali- 
fication for  a  seat  in  the  Senate,  as  defined  in  our  Constitution. 

To  accomplish  this,  it  has  been  argued  that  the  .States  of  this 
Union  are  to  l)e  considered  as  foreigji  jurisdictions,  and  that  there- 
fore the  law  as  to  foreign  domicile  is  ai»plicable  and  conclusive  in 
this  particular  case.  Tliis  proposition  the  committee  do  not  admit 
to  be  well  sustained.  It  is  undoubtedh'  true  our  courts  have 
decided  that  judgments  rendered  in  the  tribunals  of  the  sister  States 
axe  foreir/n  judgments.  Hitch  cod'  v.  Aickcti,,  1  Caines,  400  ;  Bartletl 
v.  Knight,  1  Mass.  430. 

So,  too,  bills  of  exchange  drawn  in  one  State  upon  another  State 
are  considered  as  foreign.  Duncan  v.  Course,  1  South  Carolina 
Constitutional  Reports,  100  ;  Bucliner  v.  Finley  (did  ]^ati  Lear,  2 
Peters,  586  ;  Plut^nix  Bank   v.  Hiissey,  12  Pick.  483. 

So  too  the  laws  of  other  States  of  the  Union  are  considered  as 
foreign.     Hareu  v.  Foster,  9  Pick.   112. 

For  all  national  purposes  embraced  ])y  the  Federal  Constitution 
the  States  and  the  citizens  thereof  are  one,  united  under  the  same 
sovereign  authority,  and  governed  by  the  same  laws.  In  all  other 
respects  the  States  are  necessarily  foreign  to,  and  independent  of, 
each  other.  Their  constitutions  and  forms  of  government  beino- 
although  republican,  altogether  different,  as  are  their  laws  and 
institutions.     Buclner  v.  Firdef/  and  Van  Lear,  2  Peters,  586. 

So  far  as  these  States  are  sul»ject  to  the  laws  of  the  Union,  they 

are  not  foreign  to  each  other.     But  so  far  as  thej'  are  subject  to 

.  their  own  respective  state  laws  and  government,  the}'  are  foreign 

to  each  other.     Opinion  of  Mr.  Justice  Tliompsou ,  5  Peters,  page  57. 

In  Virginia  it  was  held,  that  in  cases  of  contracts,  the  laws  of  a 


IG  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

foreign  country  where  the  contract  was  made,  must  govern  ;  and  the 
court  added.  ''  the  same  principle  applies,  though  with  no  greater 
force,  to  the  diflerciit  States  of  America  ;  for  though  they  form  a 
confederated  government,  yet  the  several  Slates  retain  their  indi- 
vidual  sovereignties,  and  with  respect  to  their  municipal  regulations, 
are  to  each  other  foreign.      Warder  v.  Arrell,  2  Wash.  298. 

All  this  may  be  conceded,  and  yet  it  will  not  follow  that  this  is 
a  question  between  a  foreign  domicile  and  a  domicile  of  origin,  or,  if 
it  were,  that  it  is  to  be  decided  by  international  law  and  not  by  the 
Constitution.  The  courts,  for  certain  purposes,  do  sometimes, 
and  to  a  limited  extent,  admit  the  applicabilit}'  of  international  law  ; 
but  it  is  for  commercial  and  not  political  purposes  that  the  citizens 
of  one  State  are  sometimes  considered  as  of  a  foreign  jurisdiction. 
In  the  opinion  of  the  committee,  the  language  of  the  court  in  the 
case  of  The  Inhabitants  of  Jejf'erson  v.  The  Inhabitants  of  Washing- 
ton, 19  Maine  Reports.  293,  as  to  the  propriety  of  invoking  the  aid 
of  the  principles  of  international  law,  is  extremely  pertinent. 
This  was  a  case  involving  a  question  under  the  State  laws,  as  to 
the  legal  settlement  of  a  pauper.  The  court  say,  "the  counsel 
for  the  defendants  in  error,  in  his  argument,  treats  the  words 
dwelling-place  and  home  as  if  synonymous  with  domicile,  and  pro- 
ceeds to  argue,  that  one  domicile  continues  until  another  is  gained  ; 
and  that  to  have  a  domicile  a  man  need  not  have  any  particular 
place  of  dwelling,  or  for  his  home  ;  and  he  cites  numerous  author- 
ities to  support  his  position.  But  the  answer  to  them  all  is,  that 
domicile,  though  in  familiar  language  used  very  properly  to  signify 
a  man's  dwelling-house,  has  in  cases  arising  under  international 
law,  and  in  kindred  cases  thereto,  a  sort  of  technical  meaning. 
And  the  authorities  cited  all  apply  to  it  in  this  sense.  It  fixes  the 
character  of  the  individual,  in  reference  to  certain  rights,  duties  and 
obligations  :  but  dwelling-place  and  home  have  a  more  limited, 
precise  and  local  application. 

When  the  legislature  speak  of  dwelling-place  and  home,  as  being 
requisite  to  establish  the  settlement  of  paupers,  it  cannot  mean  to 
use  these  terms  in  a  vague  and  indeterminate  sense.  Something 
specific  was  in  contemplation.  It  was  intended  to  define,  so  that 
it  could  not  be  misunderstood,  and  so  that  it  should  be  obvious  to 
tlie  common  sense  of  every  man,  what  should  constitute  a  settle- 
ment. Constructive  dwelling-places  and  homes,  if  there  be  any 
such,  could  not  have  been  in  contemplation.  If  a  man  actually  has 
a  home  or  dwelling-place,  all  his  fellow  townsmen  can  at  once  see 
and  know  it;  but  as  to  constructive  dwelling-places  and  homes, 
who  can  tell  what  they  are,  or  where  they  are  to  be  found,  or  to 


OKDWAY   V.    HOWE,       SENATE,    1853.  17 

which  of  the  senses  they  can  be  made  obvious.  In  the  case  of 
Turner  v.  Biickjield,  3  Greenl.  229,  it  is  expressly  decided,  that 
the  words  dwelling-house  and  home  meant  some  permanent  abode 
or  residence,  with  intention  to  remain." 

This  argument  applies  dii^ectl}'  to  the  point  involved  in  the 
present  instance.  The  word  inhabitant  is  precisely  defined  in  the 
Constitution  itself;  to  wander  in  the  paths  of  international  law  in 
pursuit  of  devices  for  evading  the  force  of  constitutional  requisi- 
tions cannot  be  reconciled  to  the  dictates  of  legislative  duty.  The 
result  would  be  the  substituting  of  a  constructive  dwelling-place  or 
home,  for  that  real,  permanent,  substantial  and  visible  place  of 
abode  which  is  contemplated  by  the  Constitution. 

The  proof  is  that  Mr.  Howe  did  not  arrive  in  Haverhill  until 
May,  1848  ;  now  to  maintain  that  he  had  his  home  and  dwelling- 
place  in  that  town,  for  months  previous,  by  construction,  is  a 
course  of  argument  which,  however  ingenious,  cannot  be  sus- 
tained in  the  ver}'  teeth  of  the  Constitution.  The  committee  would 
gladl}'  have  come  to  a  dilferent  conclusion,  Mr.  Howe  has  proved 
himself  to  be  an  active,  industrious,  and  most  acceptable  senator. 
Dignified  and  courteous  to  all,  the  committee  believe  that  there  is 
not  a  member  of  the  Senate  who  entertains  for  him  anj^  feelings 
but  those  of  very  sincere  regard.  To  lose  his  services,  and  to 
miss  his  presence,  even  for  the  short  remainder  of  the  session,  will 
be  to  his  associates  a  subject  of  regret.  But  this  must  be  met  and 
endured,  if  need  be.  After  most  anxious  deliberation,  the  com- 
mittee are  of  opinion  that  the  Hon.  Nathaniel  S.  Howe,  one  of  the 
sitting  members  from  the  District  of  Essex,  had  not  been  an  inhab- 
itant of  this  Commonwealth  for  the  space  of  five  years  immediately 
preceding  his  election,  and  at  that  time  was  not  constitutionally 
eligible  to  the  Senate.  They  therefore  declare  his  seat  to  be 
vacant. 

[The  views  of  the  minority,  finding  that,  upon  the  evidence,  Mr. 
Howe  had  resided  in  the  Commonwealth  for  five  years  immediate!}- 
preceding  his  election,  were  presented  by  Mr.  Strong.  The  report 
of  the  committee  was  indefiniteh'  postponed.  S.  J.  1853,  p.  GOl. 
The  report  of  the  majority  is  published  by  the  editors  as  correct 
in  its  findings,  and  valuable  as  a  precedent.]  * 

*  [A  previous  remonstrance  against  the  elij;ibility  of  Mr.  Howe  was  made  liy  Eben 
H.  SafJord  et  al,  and  was  siil)scquently  witlidrawn  by  the  remonstrants.] 


18  MASSACHUSETTS   ELECTION   CASES 1853-1885. 


HOUSE  — COMMITTEE  ON  ELECTIONS,  1853. 

Messrs.  W.  R.  P.  Washburn  of  Boston,  Chairman ;  John  G.  Thurston 
of  Lancaster,  William  O.  Curtis  of  Lenox,  James  D.  Green  of 
Cambridge,  Nahum  Perkins  of  North  Briclgewater,  Stephen  B.  Ives 
of  Salem,  and  Edwin  Baxter  of  Barnstable. 


Amos  Haws  et  als.  v.  Joseph  S.  Darling. 

House  Document,  No.  78.     March  4,  1853.     Report  by  W.  R.  P.  Wash- 
burn, Chairman. 

Notice  of  Meeting  for  Election.  —  Where  it  was  the  usage  to  give  fourteen  days' 
notice  of  a  town  meeting,  —  if  such  notice  was  rendered  impossible  by  the  fact  that 
the  meeting  for  the  election  of  representative  was  required  by  Article  10  of  the 
amendments  to  the  Constitution  to  be  held  on  the  second  Monday  in  November, 
and  failing  an  election,  to  be  adjourned  to  the  next  day,  and  then,  failing  an  elec- 
tion, another  meeting  was  to  be  held  on  the  fourth  Monday  in  November,  — it  was 
held  that  eleven  days'  notice,  being  all  the  notice  possible,  was  sufficient. 

Motion  not  to  Elect.  —  A  motion  made  and  laid  on  the  table  of  the  selectmen,  at  a 
town  meeting,  that  the  town  do  not  proceed  to  the  choice  of  a  representative  at  this 
meeting,  may  be  considered  as  waived,  if  subsequent  motions  are,  without  objection, 
made  and  acted  upon,  and  the  former  motion  is  not  renewed,  or  in  any  way  called 
up,  or  made  the  subject  of  remark. 

The  Committee  on  Elections,  to  whom  was  referred  the  remon- 
strance of  Amos  Haws  and  others,  against  the  right  of  Joseph  S. 
Darling  to  a  seat  in  this  House  from  the  town  of  Leominster,  have 
considered  the  subject,  and  submit  the  following  report :  It  ap- 
pears that  a  town  meeting  was  held  in  Leominster,  on  the  second 
Monday  of  November,  and  by  adjournment  on  the  day  following, 
but  no  choice  of  a  representative  having  been  made,  the  meeting 
was  dissolved,  and  another  meeting  was  called  and  held  on  the 
fourth  Monday  of  the  same  November. 

The  first  objection  to  Mr.  Darling's  right  to  a  seat  is  that  the 
warrant  for  calling  the  meeting,  was  dated  only  eleven  days  prior 
to  the  day  of  his  election  ;  whereas,  the  usage  in  Leominster  has 
been  to  give  fourteen  da^^s'  notice  of  town  meetings,  for  the  choice 
of  representatives,  as  well  as  for  other  purposes. 

By  Article  10  of  the  amendments  to  the  Constitution,  town 
meetings  are  to  be  held  on  the  second  Monday  of  November,  and 
may  be  adjourned,  if  necessary,  for  the  choice  of  representatives, 
to  the  next  day,  and  again  to  the  next  succeeding  day.  And  in 
case  a  second  meeting  shall  be  necessary,  it  shall  be  held  on  the 
fourth  Monday  of  the  same  November. 


HAWS   V.    DARLING.       HOUSE,    1853.  19 

In  this  case  there  is  no  pretence  that  all  the  notice  was  not 
given  which  could  be  given,  after  the  ineffectual  attempt  to  elect 
on  the  second  Monday  of  November,  and  the  day  following ;  and 
it  is  apparent  that  fourteen  days'  notice  could  not  be  given,  after 
the  adjournment  of  the  meeting  held  on  the  day  succeeding  the 
second  Monday  of  November,  of  a  meeting  to  be  held  on  the 
fourth  Monda}-  of  the  same  November. 

If,  then,  the  town  of  Leominster,  or  any  other  town,  in  which 
a  representative  is  not  chosen  at  the  first  meeting,  and  in  which 
there  is  a  usage  to  give  fourteen  days'  notice  of  the  meetings  of 
the  town,  can  avail  themselves  of  the  right  to  elect  on  the  fourth 
Monday  by  virtue  of  the  amendment  to  the  Constitution  providino- 
therefor,  this  objection  ought  not  to  prevail. 

The  second  objection  is  that  a  motion  in  writing  was  made  and 
laid  on  the  table  of  the  selectmen,  ''  that  the  town  do  not  proceed 
to  the  choice  of  a  representative  at  this  meeting,"  which  was  not 
put,  and  that  thereby  the  voters  were  deprived  of  the  exercise  of 
their  right  to  determine  whether  they  would  or  not  be  represented 
in  this  House. 

On  this  subject  your  committee  have  heard  the  testimony  of 
several  witnesses,  and  are  of  opinion  that  the  selectmen  con- 
sidered this  motion  as  waived,  by  reason  of  others  which  were 
subsequently  made,  put  and  acted  upon,  or  that  if  not  strictly 
superseded  by  the  subsequent  motions  which  were  to  dissolve  the 
meeting,  the  fact  that  it  was  not  renewed  or  in  any  way  called  up, 
or  made  the  subject  of  remark,  after  such  proceedings,  must  be 
taken  as  evidence  that  the  result  of  the  other  motions  was,  acqui- 
esced in,  and  that  no  one  should  now  be  allowed  to  complain  of 
that  to  which  he  made  no  objection  at  the  time. 

Your  committee  are  unanimously  of  opinion  that  neither  of  the 
objections  should  deprive  the  member  from  Leominster  of  his  seat, 
and  that  said  petitioners  have  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.     H.  J.  1853,  p.  484.] 


20  MASSACHT'SETtS    ELECTION    CASES  ^  185S-1886. 


In  ke  Martin  J.  Steere. 

Newki.l  a.  TiiOMi'soN  or  Boston,  James  Smalj.  of  Truro,  Jajiks  D.  Colt, 
■2i\.  of  Pittslield,  Moskp  B.  Grkknk  of  Amherst,  and  Eli  Thayer  of 
Worcester,  special  comniittet'. 

House  Document,  No.  llHl.    May  I'J,  185o.     Hcport  l)y  Messrs.  Thompson, 
Sm^i.i..  CoT/r  and  Gijkknk,  Mr.  Thayer,  —  dissenting. 

Eligibility  of  representative.  Removal  of  residmce.  Under  the  third  article  of 
j^ection  three,  cliapter  one  of  tlie  Constitution,  a  rcprci-entative  wlio  has  ceased  to  he 
an  inbal»itant  of  tlie  town  he  represents,  thereby  vacates  his  seat. 

Satne.  W/iat  constitutes  removal  of  residence.  Where  a  representative,  who  was 
at  tlic  time  of  election  a  minister  settled  in  Blackstone,  from  which  town  he  was 
elected,  accepted,  at^er  taking  his  seat,  a  call  to  a  church  in  Somersworth,  New 
Hampshire,  agreeing  to  commence  his  services  as  pastor  the  follo^ying  April,  and  to 
preach  himself  or  supply  tlic  pulpit  there  from  tliat  date-- preaching  there  the  first 
Sunday  in  April,  from  which  date  his  salary  commenced,  —  having  dissolved  his  pasto- 
ral relations  in  Blackstone  in  March,  and  leased  his  house  there  to  his  successor,  and 
hired  a  house  in  Somersworth  to  which  he  subsequently  removed  his  household  furni- 
ture and  personal  effects,  —  remaining  himself  with  his  wife  and  one  of  his  children 
in  temporary  quarters  in  Boston,  spending  part  of  his  time  in  Somersworth  and  other 
places,  intending  to  make  his  home  in  Somersworth  as  soon  as  the  legislature  ad- 
journed, although  wishing  to  do  nothing  to  affect  his  right  to  retain  his  seat  as  repre- 
sentative, —  and  with  that  desire  stipulating  that  he  was  not  to  assume  his  pastoral 
duties  in  Somersworth,  beyond  supplying  the  pulpit,  until  tlie  legislature  adjourned, — 
it  was  held  that  he  had  ceased  to  l)e  an  inhabitant  of  Blackstone,  and  his  scat  should 
be  declared  vacated. 

The  comniiUee  appointed  under  tin  order  of  the  House  of  the 
l.')th  inst.,  to  inquire  and  report  '•'•whether  or  not  the  Rev.  Martin 
.1.  Steere,  re[)rescntative  from  Blackstone,  is  any  longer  entitled  to 
a  seat  upon  this  floor,  inider  the  provisions  of  the  third  article  of 
the  third  section  of  the  first  chapter  of  the  Constitution  of  this 
Commonwealth,"  having  considered  the  subject  matter  referred  to 
them,  beg  leave  to  submit  the  following  report. 

The  article  of  the  Constitution  referred  to  in  the  order  under 
which  your  committee  was  appointed,  read  as  follows:  — 

"  III.  l-'very  member  of  the  house  of  representatives  shall  be 
chosen  by  written  \otes  ;  and  for  one  year  at  least  next  preceding 
his  election  shall  have  been  an  inhabitant  of  the  town  he  shall  be 
chosen  to  represent;  cmd  he  .<ihaU  cease  to  represent  the  said  town 
immodiately  ov  his  reusing  to  he  qualijiejl  as  aforesaid;  and  no 
possessi(  n  of  a  freeiiold  or  of  any  other  estate  shall  be  required  as 
a  qualification  for  holding  a  seat  in  the  house  of  representatives." 

Thus  it  appears  that  but  one  single  qualification  only  is  requisite 
to  render  a  person  an  eligible  candidate  for  a  seat  in  this  House,  to 
wit.  tliat  ol"  lieing  an  inhal)itant  of  tlie  town  lie  is  to  represent,  for 


IN    ]{E    STEERE.       HOU.SE,    1853.  21 

one  year  at  least  next  preceding  an  election,  and  being  thus  digiblc 
as  a  candidate,  he  must  be  elected  b}'  loriUen  votes  to  entitle  him  to 
a  seat ;  and  the  words  in  the  Constitution,  "  ^tw?  he  shall  (mine  to 
represent  the  said  town  immediately  on  his  ceasing  to  he  '/naUficd 
as  aforesaid,"  nuist  be  construed  as  referring  to  the  single  qualifi- 
cation of  inhabitancy  only,  and  therefore,  whenever  the  representa- 
tive ceases  to  possess  this  single  (jualification  of  inhabitancy,  he- 
must,  under  this  provision  of  the  Constitution,  vacate  his  seat ;  and 
the  question  now  to  be  determined  is,  wlie;her  Mr.  Steere's  case 
comes  within  this  provision. 

It  is  admitted  that  at  tlie  time  of  his  election  in  November  last, 
he  was,  and  had  been  for  one  year  at  least  previously,  an  inhabi- 
tant of  Blackstone,  and  that  he  was  elected  as  a  rei)resentative 
from  that  town  by  the  written  votes  of  his  constituents.  But  it 
appeared  in  evidence  before  the  Committee,  and  vv.as  admitted  b}' 
Mr.  Steere  himself,  that  sometime  in  Marcii  last,  being  then  the 
pastor  of  a  Baptist  Society  in  Blackstone,  he  received  an  invitation 
to  change  his  pastoral  relations  and  take  charge  of  a  similar  society 
in  the  village  of  Great  Falls,  at  Soraersworth,  New  Hampshire  ; 
that  he  accepted  this  invitation,  and  entered  into  an  agreement 
with  the  last  named  society  to  commence  his  services  with  them  on 
the  first  of  April,  stipulating  to  preach  himself,  or  to  supply  the 
pulpit,  from  that  date,  and  actually  preaching  there  himself  on  the 
first  Sabbath  in  April,  his  stated  salary  commencing  from  that  date. 
That  in  pursuance  of  this  arrangement,  he  dissolved  his  pastoral 
relations  with  the  society  in  Blackstone  in  March,  taking  leave  of 
them  at  that  time  b}'  a  formal  discourse,  such  as  is  usually'  denomi- 
nated under  such  circumstances,  "•  a  faretoell  sermon"  leased  the 
house  he  then  occupied  there  to  his  .successor  in  the  ministrj-,  or 
for  his  use  ;  hired  a  house  in  Somersworth,  to  wliicii  he  subse- 
quentl}'  removed  all  his  household  furniture  and  personal  effects, 
where  the  same  now  are  arranged  in  order  for  housekeeping.  Since 
that  time  Mr.  Steere  himself  has  occupied  temporary  rooms  in 
Boston,  his  wife  and  one  of  his  children  being  with  him  a  portion  of 
the  time,  and  a  portion  of  the  time  at  Somersworth  and  elsewhere, 
and  he  has  preached  several  Sabbaths  at  Great  Falls  since  the  first 
of  April.  That  when  he  left  Blackstone,  he  did  so  with  the  full 
intention  of  not  again  returning  there  to  reside,  but  with  a  determi- 
nation to  make  Somersworth  his  permanent  residence,  and  to  go 
there  directly  from  Boston  as  soon  as  the  legislature  should 
adjourn . 

It  further  appeared  in  evidence  before  the  committee,  that  the 
selectmen  and  board  of  assessors  at  Blackstone  had  stricken  the 
)iame  of  Mr.  Steere  from  the  list  of  resident  tax-payers  prior  to 


22  MASSACHUSETTS    ELECTION    CASES 1853-1885. 

the  first  of  Ma}-,  and  that  he  was  not  assessed  in  that  town  for  his 
poll  tax  and  personal  estate  on  the  first  day  of  May,  and  would 
not  be  so  assessed. 

Under  these  circumstances,  your  committee  are  of  opinion  that 
Mr.  Steere,  having  left  Blackstone  on  or  about  the  first  of  April 
last,  with  the  intention  of  taking  up  his  residence  in  another  State, 
which  intention  is  made  fully  manifest  b^-  various  other  subsequent 
acts  of  his,  then  ceased  to  be  an  inhabitant  of  that  town,  within 
the  true  intent  and  meaning  of  the  provisions  of  the  Constitution 
herein  before  referred  to. 

Having  thus  lost  his  residence  in  Blackstone,  the  question  arises, 
whether  he  has  become  an  inhabitant  of  the  city  of  Boston,  where 
he  now  occupies  temporary  lodgings,  or  whether  he  has  actually 
gained  a  residence  in  Somersworth.     And  in  this  connection  your 
committee  would  remark,  that  Mr.  Steere  stated  to  them,  that,  in 
his  stipulations  with  the  committee  of  the  society  at  Great  Falls,  it 
was  verbally  understood  between  that  committee  and  himself,  that 
he  was  not  to  enter  upon  his  parochial  duties,  beyond  that  of  sup- 
plying their  pulpit,  until  after  the  adjournment  of  this  legislature, 
and  that  he  did  not  wish  to  do  anything  which  would  deprive  him 
of  the  right  to  retain  his  seat  in  this  house  ;  and  your  committee 
with  great  pleasure  accord  to  Mr.   Steere  the  best  of  motives  in 
regard  to  this  matter,  believing,  as  they  do,  that  he  fully  believed 
the  course  he  was  taking  as  to  his  change  of  residence  to  be  one 
which  he  could  lawfully  pursue,  and  still  be  entitled  to  a  seat  on 
this  floor.     But  this  desire  on  his  part,  and  verbal  understandino- 
between    him    and    his   employers  in  New  Hampshire,  cannot  be 
considered  as  destroying,  or  at  all  controlling  the  legal  effect  of 
the  many  acts  actually  done  by  him,  constituting  in  themselves  a 
change  of  residence  ;  nor  do  they  afford  sufficient  ground   upon 
which  he  may  properly  base  a  claim  to  be  an  inhabitant  of  the  city 
of  Boston,  where    he   now  has   temporaVy  lodgings.     For  if  the 
declaration  of  a  party  alone  were  to  be  taken  in  such  a  case,  with- 
out regard  to  his  actions  in  the  premises,  it  is  obvious  that  the 
provisions  of  the  Constitution  now  under  consideration  would  be 
wholly  unnecessary  and  ineffectual,  and  no  representative    could 
ever  be  unseated  on  account  of  his  "  ceasing  to  be  an  inha1)itant  of 
the  town  he  was  chosen  to  represent ;  "  for  although  he  might  per- 
form all  those  acts  which  in  themselves  constitute    a    change  of 
residence,  he  would  only  have  to  declare  his  intention  to  consider 
himself  a  citizen  of  Boston  until  the  legislature  rises,  to  secure  his 
seat  in  the  House,  notwithstanding  he  may  have  actually  removed 
from  the  State,  or  from  the  country  even,  and  be  thereby  wholly 
beyond  the  reach  of  the  laws  he  is  assisting  to  enact. 


.L. 


IX    RE    STEERE.       HOUSE,    1853.  23 

To  this  doctrine  your  committee  cannot  assent ;  but  they  arc  of 
the  opinion  that  Mr.  Steere,  having  by  his  own  acts  ceased  to  bo 
an  inhabitant  of  Blaclvstone,  as  before  mentioned,  has  not  acquired 
a  residence  in  this  cit}',  but  is  merely  here  for  a  temporary  pur- 
pose ;  and  tliat  having  removed  his  furniture  and  personal  effects 
to  Soniersworth,  New  Hampshire,  and  connected  himself  with  a 
religious  society  there,  as  their  pastor,  and  having  already  actually 
commenced  his  clerical  duties  b}'  preaching- there  himself,  or  pro- 
curing others  to  preach  for  him,  in  pursuance  of  an  agreement 
entered  into  between  himself  and  the  said  society,  he  has  thus 
acquired  a  legal  residence  in  Somersworth,  to  all  intents  and  pur- 
poses, and  is  therefore  no  longer  a  citizen  of  Massachusetts. 

Your  committee  do  not  deem  it  necessary  to  go  into  any  ex- 
tended argument  to  substantiate  the  position  the}'  have  taken  in 
this  case,  but  beg  leave  to  refer  the  House  to  a  case  of  similar 
character,  in  which  precisely  the  same  principles  are  involved  and 
fully  discussed,  to  wit,  the  case  of  Henry  H.  Baker,  returned  a 
member  of  the  House  of  Representatives  in  the  year  IS.")!  from 
Georgetown. — Reports  of  Election  Cases  in  Massachusetts,  Gushing, 
S.  J.,  page  599,  &c. 

Taking  the  decision  of  that  case  as  a  precedent,  a  majority  of 
the  committee  have  no  hesitation  in  reporting  that,  in  their  judg- 
ment, the  Reverend  Martin  J.  Steere  is  no  longer  entitled  to  a 
seat  on  this  floor  as  a  representative  from  the  town  of  Black- 
stone.  * 

[The  resolve  that  the  seat  was  vacated  reported  by  the  majority 
of  the  committee  was  ordered  to  a  third  reading  under  a  suspen- 
sion of  the  rules,  and  later  both  reports  and  the  resolve  were  laid 
on  the  table,  and  no  further  action  appears  to  have  been  taken. 
H.  J.,  1853,  pp.  929,  947,  956.  The  report  of  the  majority  is  pub- 
lished by  the  editors  as  a  valuable  precedent.] 

*  [Note  by  the  Editors.  This  case  arose  under  the  former  provisions  of  the  Con- 
stitution of  tlie  Commonwealth,  (Art.  III.  sect.  3,  ch.  1),  that  every  member  of  the 
House  of  Representatives  shall  have  been  for  one  year  at  least  next  preceding  his 
election  an  inhabitant  of  the  town  he  shall  be  chosen  to  represent,  and  shall  cease 
to  represent  said  town  immediately  on  his  ceasing  to  be  qualified  as  aforesaid. 
Under  this  provision,  as  construed  by  the  committee,  a  representative  ceased  to  be 
qualified  to  retain  his  seat,  when,  after  taking  it,  he  removed  from  the  town  he  was 
chosen  to  represent.  Since  the  report  of  the  committee,  this  provision  was  amended 
in  1857  (Art.  XXI.  of  the  Amendments),  by  substituting  the  provision  that  "every 
representative,  for  one  year  at  least  next  preceding  his  election  shall  have  been  an 
inhabitant  of  the  district  for  which  he  is  chosen,  and  shall  cease  to  represent  said 
district  when  he  shall  cease  to  be  an  inhabitant  of  the  Commonwealth."  Under  this 
provision,  the  removal  of  a  representative  from  the  district  for  which  he  was  chosen 
to  another  place  in  the  Commonwealth  will  not  disqualify  him  to  retain  his  seat.  To 
vacate  the  seat,  the  removal  must  be  to  some  place  out  of  the  Commonwealth.] 


24  MASSArnrSETTS    ELECTIOX    cases 1 853 -1885. 


HOUSE  — COM  M  ITT  EE   ON   ELECTIONS,    1854. 

Messrs.  Hkxky  W.  Kinsman  of  Nowbuiyport,  Chairman;  Stki-iikn  B. 
IvKS  of  Sak'in.  Bkx.i amin  Evans  of  Fiettown,  J.  Otis  Wn.i>iAMs  of 
Boston,  I'KTKit  1'.  Howi:  of  Soutbborouyh,  Thaddkus  B.  Bigkj.ow  of 
Cambridge,  William  Waknkk  of  Sheflield. 


C.  B.  Penniman  et  als.  v.  Parley  J.  Prindle. 

House,  uuprinted.      March  18,   185-t.      Report   Ijy  Henry  W.  Kinsman, 

Chairman. 

[In  this  case  tlie  remonstrants  claimed  that  the  sitting  member, 
returned  as  elected  in  the  town  of  Williamstown,  was  not  entitled 
to  the  seat,  on  the  ground  that  the  warrant  of  the  selectmen  of 
the  town  calling  the  meeting  for  the  general  election  of  the  year, 
directed  that  the  votes  for  governor,  lieutenant-governor  and  sen- 
ators should  be  on  one  ballot,  but  did  not  direct  that  the  votes  for 
representative  should  be  on  the  same  ballot.  It  appeared  in  evi- 
dence that  a  number  of  the  votes  for  the  sitting  member  for  repre- 
sentative, —  sufficient,  if  thrown  out,  to  change  the  result,  —  were 
written  on  the  ballot  for  governor,  lieutenant-governor  and  sen- 
ators, and  so  deposited  in  the  ballot-box,  and  were  counted  for 
him.  The  committee  apparently  considered  the  fact,  if  proved,  to 
be  immaterial  to  the  validity  of  the  election,  and  reported  that  the 
remonstrants  have  leave  to  withdraw.  The  report  was  accepted 
l>y  the  House.  H.  J.,  1854,  p.  622.  C.  B.  Pknniman  represented 
the  remonstrants,  and  Andrew  J.  Waterman  the  sitting  member.] 


LYNDE    ET    AL.,    PETS.       HOUSE,    185G.  2.') 


irOUSE  — COMMITTEE   ON  ELECTIONS,    ^Hr,C,. 
Messrs.  Lijthkk.J.  Fletchku  ol'  Lowell,  Samliki.  ().  Lamb  of  (inculiuld, 

JOXATHAX    E.    MOKHILL    of    Fall   llivei",     ClIAlU-KS   J.     TaYI.()1{    of  (ileal! 

Barrinytou,  Joshua  C.  Howes  of  Dennis,  Joseimi  Lunt  of  Newhiirv, 
and  Joiix  F.  Fexxo  of  North  Chelsea. 


Warren  Lynde  et  als.,  Petitioners. 

House  Docuiuout,  No.  29.     January  2G,  1856.     Report  by  L.  J.  Fi.ktciiki; 

Chairman. 

Order  of  Action  upon  Wa> rant  for  Meeting.— Vf have  tlic  second  article  in  the 
warrant  for  a  town  meeting  was,  "  to  bring  in  their  votes  for  a  representative  to  tlie 
general  court  on  a  separate  ticket,"  —  the  town  can  act  upon  such  article,  before 
disposing  of  the  first  article  in  the  warrant. 

Same.  — A  motion  to  send,  or  not  to  send,  a  representative,  is  equivalent  to  a 
motion  to  take  up  the  second  article  in  the  warrant. 

Motion  not  to  send  a  Representative.  — A  motion  not  to  send  a  representative, 
properly  made  and  fairly  adopted,  will  be  binding  upon  the  town. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Warren  Lynde  and  others,  of  Melrose,  in  relation  to  the  town 
meeting  of  said  town,  holden  November  6,  1855,  have  considered 
the  same,  and  report  that  they  have  carefully  considered  all  the 
matters  set  forth  in  said  petition,  and  have  given  to  the  parties 
interested  a  hearing  in  relation  thereto. 

From  the  statements  of  the  petitioners,  and  from  facts  which 
were  given  in  testimony  at  the  hearing  aforesaid,  it  appears,  that 
said  town  meeting  was  legally  warned,  and  was  called  to  order  at 
the  proper  time,  and  by  the  proper  town  officer.  That  immediately 
after  the  meeting  was  called  to  order  the  town  clerk  read  the  war- 
rant, and  then,  before  any  other  business  was  transacted,  a  motion 
was  made  to  the  effect,  that  the  town  should  send  a  representative 
to  the  next  general  court. 

This  motion  had  reference  to  the  second  article  in  the  warrant 
for  said  meeting,  said  article  reading  as  follows,  to  wit:  —  "To 
bring  in  their  votes  for  a  representative  to  the  general  court,  on  a 
separate  ticket." 

Said  motion  to  send  was  not  seconded,  and  immediateh*  after  a 
motion  was  made  not  to  send,  which  motion  was  seconded  and  put 
to  vote,  when  a  large  majority  of  the  voters  present  sustained 
the  motion,  and  the  chairman  declared  that  it  was  a  vote  not  to 
send. 


2(i  M  \S>;ACHU8ETTS   election   cases — 1853-1885. 

A  motion  was  then  made  to  reconsider  said  vote,  and,  during 
the  pendency  of  said  motion,  three  gentlemen  spoke  upon  the 
question,  and  all  the  discussion  was  allowed  upon  the  same,  which 
any  voter  then  present  offered,  or  requested  to  have. 

The  meeting  refused  to  reconsider  said  vote,  by  a  large  majority 
of  those  present,  and  from  the  testimony  of  both  petitioners  and 
respondents,  the  committee  are  satisfied  that  said  majority,  which 
then  and  there  voted  not  to  send,  and  refused  to  reconsider  said 
vote,  were  also  a  majority  of  all  those  who  voted  at  said  town 
meeting  during  that  da}'. 

It  appears  that  after  this  question  had  been  decided,  and  before 
said  town  meeting  closed,  several  legal  voters  tendered  to  the  chair- 
man of  said  meeting,  their  votes  for  Levi  Martin,  as  representative, 
and  claimed  that  they  should  be  received  and  counted.  Said  votes 
were  not  received,  counted,  or  declared,  and  it  was  not  made  to 
appear  to  the  committee  that  more  than  five  such  votes  for  repre- 
sentative were  offered  to  be  cast. 

The  petitioners  claim  that  the  vote  not  to  send  a  representative, 
was  invalid,  inasmuch  as  such  a  vote  could  not  be  taken  until  the 
first  article  in  the  warrant  had  been  disposed  of;  and,  as  a  number 
of  votes  were  offered  for  Levi  Martin,  for  representative,  and  none 
for  any  other  person,  for  that  office,  they  therefore  ask  that  this 
honorable  House  shall  take  such  action  in  reference  to  the  election 
of  said  Levi  Martin,  and  his  right  to  a  seat,  as  shall  be  deemed 
just  and  proper. 

The  committee  are  unanimous  in  the  opinion,  that,  after  the 
warrant  for  said  meeting  had  been  read,  the  town  had  a  right  to 
act  first  upon  the  second  article  in  said  warrant,  if  they  so  chose  ; 
and  that  a  motion  to  send  a  representative,  or  a  motion  not  to  send 
a  representative,  was  equivalent  to  a  motion  to  take  up  the  second 
article  in  the  warrant. 

They  are  satisfied  that  the  motion  not  to  send  was  properly 
made,  that  ample  time  was  allowed  for  the  consideration  and  dis- 
cussion of  the  same,  and  that  the  decision  then  had  was  a  fair 
expression  of  the  wishes  of  the  legal  voters  of  that  town. 

As  there  were  no  votes  received,  counted  or  declared  in  said 
town  meeting,  for  the  said  Levi  Martin,  the  committee  must 
decide  that  there  was  no  election  of  the  said  Martin,  and,  con- 
sequently, nothing  in  the  request  of  the  said  petitioners  upon 
which  they  are  called  to  decide. 

The  committee  recommend  that  the  petitioners  have  leave  to 
withdraw. 

[The  report  of  the  committee  was  accepted.     H.  J.  1856,  p.  174.] 


I  [INKS    v.    JONES.       HOUSE,    ISafi.  27 


Edward  W.  Hinks  et  al.  v.  Justin  Jojses  et  al. 

House  document,  Xo.  04.  Fel)ruary  18,  1856.  Ueport  by  Me.-<.sr.s. 
Fletcher,  Mokkill,  Hours,  T.A.Yr,(>R  and  Lunt,  —  M<".:v;iv.  Lamm  and 
Fexxo,  dissenting. 

Issues  open  tipon  the  Petition.  Practice  —  At  the  fceneral  election  in  which  44  repre- 
sentatives were  to  be  elected  from  Boston  on  one  ballot,  the  representative  whose  seat 
was  controverted,  Jones, —  was  elected  with  42  others,  the  two  next  highest,  Ilinks  and 
Cornell,  having  the  same  number  of  votes,  so  that  there  was  no  choice  of  the  44th 
member.  At  a  subsequent  election  to  fill  the  vacancy,  another  person,  one  Coniey, 
was  elected.  In  a  petition  !)y  Hinks  and  Cornell  against  Jones  and  Coniey,  it  was 
claimed  that  Jones  was  ineligible,  so  that  both  petitioners  were  elected  at  the  general 
election,  and  Conley's  subsequent  election  was  void.  It  was  kc/d  that  Jones  could 
not  introduce  evidence  that  there  were  informalities  or  illegal  proceedings  in  certain 
wards  at  the  general  election,  rendering  the  election  in  those  wards  void,  and 
therel>y  so  changing  the  result  that  other  persons  than  the  petitioners  would  be  the 
next  highest  candidates  to  those  returned  as  elected,  as  Jones's  right  could  not  be 
affected  by  such  evidence. 

Eligibility  of  Representative.  Inhahitamy.  Upon  the  issue  whether  the  returned 
member  bad  been  an  inhabitant  of  Boston  for  one  year  previous  to  the  election, 
November  6,  1855,  so  as  to  be  eligible  to  election,  it  appeared  that  he  had  lived  in 
his  own  house  in  Cambridge  for  some  years  previous  to  1854,  doing  business  in 
Boston,  and  continued  to  reside  there  until  August  14, 1854,  when  lie  commenced 
boarding  at  the  Quincy  House,  Boston,  leaving  his  furniture  in  his  house  in  Cam- 
bridge, and  continued  to  board  at  the  Quincy  House,  paying  by  the  day,  for  a 
month.  His  family  in  the  meantime  visited  in  the  country.  During  liis  stay  at  the 
Quincy  House  and  at  other  times,  he  tried  to  find  a  house  in  Boston,  and  expressed 
an  intention  of  moving  there,  if  he  could  succeed,  and  not  to  return  to  Cambridge  if 
he  could  help  it.  In  September  his  family  returned  to  the  house  in  Cambridge  and 
he  joined  them  there,  continuing  to  live  there  until  March  or  April  1855,  when  he 
removed  to  Boston.  It  was  held  that  he  was  not  a  resident  of  Boston  for  one  year 
next  preceding  his  election,  and  was  ineligible. 

]'otesfor  ineligible  Candidate.  Votes  cast  for  a  person  found  ineligible  by  reason 
of  non-residence,  cannot,  in  the  absence  of  proof  that  they  were  cast  with  knowledge 
of  the  ineligibility  and  with  an  intention  on  the  part  of  the  voters  to  throw  away 
their  votes,  be  regarded  as  blanks,  so  as  to  entitle  the  candidate  receiving  the  next 
highest  number  of  votes  to  the  seat. 

Charles  Thompson  for  petitioners. 
Warren  Tilton  for  sitting  members. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  PMward  W.  Hinks  and  William  M.  Cornell,  in  relation  to  the 
rio-ht  of  Justin  Jones  and  Charles  C.  Conlev,  members  returned 
from  Boston,  to  a  seat  in  this  House,  and  claiming  themselves  to 
have  been  elected,  have  considered  the  same,  and  report  that  they 
have  patiently  heard  and  carefully  considered  all  the  evidence 
offered  by  the  petitioners  in  support  of  their  petition,  and  all  the 
evidence  offered  by  the  respondents  which  could  in  any  way  affect 
their  interests  as  members  of  this  bod}'. 

Both  petitioners  and  respondents  were  represented  by  learned 
counsel,  and  the  committee  have  cause  to  believe  that  all  the  facts, 
material  to  a  correct  view  of  this  case,  were  made  to  appear. 


28  MASSACHUSETTS    ELECTION    CASES 1853-1885. 

In  regard  to  those  facts,  there  is  little,  if  any  ditTerence  of  opin- 
ion in  the  minds  of  tlie  committee  ;  but  upon  some  points  of  law 
applying  to  those  facts,  and  upon  some  conclusions  to  be  drawn 
from  them,  they  are  not  so  happily  agreed. 

There  are  principles  involved  in  this  case,  different,  in  some 
respects,  from  those  to  be  found  in  any  election  case  to  which  we 
have  been  able  to  refer  as  a  precedent,  and  upon  some  points  the 
decisions  appear  conflicting  ;  but,  guided  in  our  investigations  by 
the  highest  authorities  we  have  been  able  to  consult,  we  have, 
upon  the  facts  hereinafter  stated,  arrived  at  the  subjoined  decisions. 

It  appears  from  the  records  of  the  city  of  Boston,  that,  at  the 
State  election  on  the  6th  day  of  November  last,  Justin  Jones 
received  five  thousand  three  hundred  and  thirty-three  votes  for 
representative  from  said  city  of  Boston  to  this  general  court ;  and 
that  said  votes  were  the  requisite  number  to  secure  his  election. 

It  also  appears  that  forty-two  other  representatives  were  elected, 
and  that  Edward  W.  Hinks  and  William  M.  Cornell  received  the 
next  hiohest.  and  the  same  number  of  votes.  Boston  being  entitled 
to  but  forty-four  representatives,  there  appeared  to  be  one  vacancy, 
and  only  one;  and,  as  said  Hinks  and  Cornell  had  an  equal 
number  of  votes,  neither  of  them  could  claim  an  election  to  the 
exclusion  of  the  other. 

Another  election  was  had  in  Boston  on  the  26th  of  said  November, 
for  the  choice  of  one  representative,  at  which  election  Charles  C. 
Conley  received  one  thousand  seven  hundred  and  sevent\'-four  votes, 
and  was  declared  elected. 

Said  Conley  and  Jones,  with  forty-two  others,  received  their 
credentials  as  representatives  from  the  city  of  Boston,  and  were 
admitted  to  seats  in  this  House. 

But  the  petitioners,  in  their  said  petition,  allege  that  the  said 
Justin  Jones  was  ineligible,  as  a  representative  from  Boston,  at  the 
time  of  said  election,  on  the  6th  of  November  last,  he  not  having 
resided  in  Boston  for  the  term  of  one  j'ear  next  previous  to  that 
date. 

[The  report  here  contains,  at  some  length,  the  testimony  of  the 
witnesses  examined  b}^  both  parties  upon  the  (juestion  of  Jones' 
residence,  — and  then  continues.] 

At  this  stage,  in  the  hearing  of  this  case,  the  attorney  for  the 
respondents  proposed  introducing  "testimony  to  show  that  there 
were  informalities,  or  illegal  proceedings  in  the  election  in  wards 
one  aiic\  Jive,  in  the  city  of  Boston,  on  the  6th  of  November  last,  so 
great  as  to  render  void  the  election  in  said  wards ;  which  fact,  if 
shown,  would  materially  change  the  result  in  the  pluralit}"  of  votes 


1I1NK>    '•.    JONES.       ilULSK,    l«.-,(;.  29 

claimed  by  the  petitioners,  and  show,  that  in  case  the  respondents 
are  not  entitled  to  seats  in  this  House,  then  some  other  persons, 
and  not  Messrs.  Hinks  and  Cornell,  are  the  next  highest  candidates, 
and  miglit  claim  their  rights  as  such. 

The  counsel  for  the  petitioners  oljjected  to  the  introduction  of 
such  tcstimon}",  and  the  chairman  of  the  committee  decided  that 
it  ought  not  to  be  put  in. 

On  this  decision  tlie  committee  were  not  agreed,  and  the  attorne}' 
for  the  respondents  filed  in  the  case  the  following  request,  to 
wit :  ''  In  case  of  any  other  report,  except  leave  for  the  petitioners 
to  withdraw,  the  respondents  in  this  case  respectfully  ask,  that  the 
ruling  of  the  committee  on  this  point  should  be  reported  to  the 
House." 

In  compliance  with  this  re<iuest,  tiie  ruling  of  tiie  cliairman  is 
here  given,  which,  having  been  put  in  writing  at  the  time  it  was 
made,  was  agreed  to,  and  signed  by  a  majority  of  the  committee. 
It  was  in  substance  as  follows,  to  wit :  — 

Elded,  That  if,  as  alleged  in  the  petition  of  Edward  W.  Hinks 
and  William  M.  Cornell,  Justin  Jones  was  ineligible  as  a  repre- 
sentative from  Boston  on  the  6th  of  November  last,  and  if  the 
votes  given  for  him  at  the  election  on  that  day  are  to  be  considered 
as  blanks,  then,  as  it  is  not  denied  by  either  petitioners  or  re- 
spondents, that  the  election  on  that  da}'  in  all  the  wards  of  Boston, 
except  wards  one  and  five,  was  valid,  and  the  returns,  as  made, 
correct,  it  follows,  in  that  case,  that  two  other  persons  were  elected, 
and  those,  the  two  who  had  the  next  highest  number  of  the  votes 
legally  cast  and  returned. 

Under  such  circumstances,  Mr.  Jones,  who  could  not  be  entitled 
to  his  seat,  because  of  ineligibilit}-,  could  not,  upon  his  rights  as 
respondent  in  this  case,  put  in  testimon}-  to  show  that  the  election 
in  some  of  the  wards  was  invalid  and  void,  as  that  could  in  no  way 
affect  his  right  to  a  seat  in  this  House. 

Neither  could  Mr.  Conley,  under  the  propositions  aforesaid,  put 
in  such  testimony,  unless  he  claims  that  at  the  election  on  the  said 
6th  of  November,  he  was  a  candidate  on  one  of  the  representative 
tickets  in  Boston,  and  also  claims  that  by  tlirowing  out  the  returns 
from  wards  one  and  five  in  said  Boston,  either  or  both,  he  should 
have  been  one  of  those  two  next  highest  candidates  aforesaid,  and, 
consequently,  elected  ;  for  if,  as  aforesaid,  Jones  is  ineligible,  and 
the  votes  cast  for  him  are  to  be  treated  as  blanks,  then  two  other 
men  were  elected,  and  if  Conley  was  not  one  of  them,  that  ends 
his  case  as  respondent  here,  and  the  proposed  testimony  could  in 
no  way  affect  his  claims  as  a  member  of  this  body. 

Again  ;    if,  as  before,  we  say  that  Jones  is  ineligible,  but  say 


30  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

that  the  votes  cast  for  him  should  be  counted,  then  there  was  but 
one  vacancy  which  the  mayor  and  aldermen  of  Boston  had  power 
to  act  upon,  and  the  election  of  the  26th  of  November  was  right- 
fully called,  and  Mr.  Conley,  having  a  plurality  of  votes  cast  on 
that  day,  would  be  entitled  to  his  seat. 

With  this  view  of  the  case,  as  the  testimony  proposed  could  not 
in  any  way  affect  the  interests  of  the  parties  desiring  to  introduce 
il.  we  believe  and  decide  that  it  should  not  be  allowed  in  this 
investigation. 

After  this  ruUng,  the  respondents  signified  their  intention  to  rest 
the  case  here,  and  the  committee,  after  listening  to  the  arguments 
of  the  learned  attorneys  on  both  sides,  proceeded  to  consider 
the  authorities  cited  and  to  compare  them  with  the  facts  in  this 

case. 

As  the  first  question  to  be  considered  was  whether  or  not  Justin 
Jones  was  eligible  to  a  seat  in  this  House,  as  a  representative  from 
Boston,  the  committee  proceeded  at  once  to  an  examination  of  all 
the  facts  that  had  been  adduced  in  testimony,  and  of  all  the  author- 
ities that  had  been  cited,  as  bearing  in  any  way  upon  this  point. 

They  find,  that,  to  have  been  an  eligible  candidate  for  represen- 
tative from  Boston,  at  the  last  State  election,  he  must  have  been 
an  inhabitant  of  Boston  for  one  3-ear  next  previous  to  the  6th  day 
of  November  last.  This  is  a  qualification  required  by  the  Consti- 
tution of  the  Commonwealth,  and  the  question  is,  had  said  Jones 
this  qualification? 

He  had  lived  in  East  Cambridge,  in  his  own  house,  for  several 
years  previous  to  1854.  During  1854  he  continued  to  reside  there 
until  August  14,  when  we  find  him  commencing  to  board  at  the 
Quincy  House,  in  Boston.  We  have  it  in  evidence  that  he  boarded 
there  one  month,  and  some  say  they  think  he  was  there  two  months 
or  more,  but,  in  the  minds  of  the  committee,  the  time  is  very 
clearly  fixed  as  being  from  the  14th  of  August  to  the  14th  of  Sep- 
tember ;  for  Mr.  Burdagin,  of  East  Cambridge,  said  that  his 
account  with  Jones  for  provisions  was  all  regular  as  usual,  with 
the  exception  of  from  August  10  to  Se[)tember  14,  during  the  whole 
of  that  year. 

If  the  last,  in  August,  which  Burdagin  charged  to  Jones,  was  on 
the  10th  of  that  month,  and  Jones  went  to  the  Quincy  House  to 
board  on  the  14th,  how  is  it  that  the  charges  commenced  again 
on  the  11th  of  September,  unless  the  family  of  Jones  returned 
on  or  before  that  day  ?  And  is  it  probable  that  Jones  would  have 
remained  at  the  Quincy  House  after  his  family  had  returned  to 
his  house  in  East  Cambridge  ?     We  think  not. 

We  are  fully  satisfied,  that,  with  the  exception  of  a  single  month. 


IIINKS    V.    JONES.       HOUSE,    ISofi.  .".I 

Jones  resided  in  East  Cambridge  during  the  wiiole  of  1854,  and 
until  the  month  of  March  or  April,  of  1855. 

Mr.  Burdagin,  who  furnished  his  family  with  provisions,  is  con- 
fident of  this.  Mr.  Slocumb,  who  was  his  neighbor,  and  lived  nearly 
opposite,  on  the  same  street,  is  sure  that  his  famil}-  resided  there 
until  the  March  or  April  aforesaid  ;  and  of  this,  too,  Mr.  Tufts 
was  quite  as  confident. 

We  are  then  to  ask,  as  our  next  inquiry,  what  effect,  if  any,  the 
residence  or  sta}'  of  Mr.  .Tones  at  the  Quincy  House,  from  August 
14  to  September  14,  had  in  changing  his  domicile  from  East  Cam- 
bridge to  Boston? 

His  house,  his  furniture,  and  his  last  domicile  were  at  East 
Cambridge.  His  familj'  had  just  gone  from  there,  as  it  appears, 
to  visit  for  a  time  in  the  country.  Jones  tries  to  find  a  house  in 
Boston  during  his  stay  at  the  Quincy  House,  and  tells  one  of  his 
men  that  if  he  can  succeed,  "•  he  shall,  on  the  return  of  his  famil}', 
move  directly  to  Boston."  "  That  he  shall  not  go  back  to  E^ast 
Cambridge,  if  he  can  help  it."  Did  this  desire  of  his  to  live  in 
Boston,  coupled  with  the  fact  of  his  stay  at  the  Quinc}'  House  ;  did 
this  conditional  intention  to  move  into  Boston,  coupled  with  the 
fact  of  his  boarding  there  for  one  month,  —  make  him  a  resident  of 
Boston  —  an  inhabitant  of  that  city  within  the  meaning  of  that 
word,  as  used  in  the  Constitution  ? 

The  supreme  judicial  court  of  this  Commonwealth  has  decided 
some  few  points  that  will  aid  us  in  our  decision  of  these  questions. 

First.  "The  word  '  inhabitant,'  in  the  Constitution,  is  equiva- 
lent to  the  idea  conveyed  by  the  word  domicile."  —  5  Met.  Rep., 
588. 

Second.  ''Everyman  must  have  a  domicile  somewhere." — 5 
Met.  Rep.,  589. 

Third.  "  The  loss  of  a  former  domicile  and  the  acquisition  of  a 
new  one  are  simultaneous."  —  76. 

Now,  if  Mr.  Jones  acquired  a  domicile  at  the  Quincy  House,  he 
lost  his  domicile  at  Cambridge  —  he  could  not  have  one  in  both 
places  at  the  same  time. 

Did  he  lose  his  domicile  at  Cambridge,  while  his  furniture 
remained  there  in  his  own  house,  and  while  he  was  undecided 
whether  or  not  he  should  go  back  there  to  live  ? 

The  committee  think  not. 

In  the  Georgetown  case  it  was  decided  that  a  man's  domicile  is 
"  that  place  where  he  is  voluntarily  situated,  with  the  intent  to 
remain  permanently." 

Now,  although  it  may  be  said  that  Jones  was  voluntarily  situ- 
ated in  Boston,  can  it  be  said  that  he  intended  to  remain  perma- 


32  ]\[ASSACHUSETTS   ELECTION    CASES  —  1853-1885. 

nently  there  ;  or  did  that  intention  depend  on  the  contingency  of 
getting  a  suitable  liouse?  The  testimony  of  Mr.  Beckett  settles 
this  question,  for  lie  said,  tliat  Mr.  Jones  told  him  he  should  not 
go  back  to  Cambridge  to  live,  if  he  could  get -a  suitable  house  in 
Boston.  Til  at  was  certainly  equivalent  to  saying  that  he  should 
go  back,  if  he  could  not  find  a  house  ;  and  then  the  fact  of  his 
going  back,  which  was  conclusively  shown,  confirms  the  committee 
Tn  their  belief  that  he  never  had  a  fixed  intent  to  remain  perma- 
nently in  Boston,  during  his  stay  at  the  Quincy  House.  His 
intent  depended  upon  an  uncertainty.  His  desire  to  remain  in 
Boston  was  wedded  to  as  strong  a  fear  that  he  should  not  be  able 

to  remain. 

He  could  not,  under  those  circumstances,  have  gained  a  domicile 
in  Boston,  by  boarding  there  a  single  month. 

The  Georgetown  case,  Contested  Election  Reports  (Cushing,  S. 
«fe  J.),  page  599,  cited  by  the  respondents,  as  tending  to  show  that 
Jones  gained  a  domicile  in  Boston,  in  18r)4,  is  not  a  case  having  a 
single  parallel  with  the  one  under  consideration. 

That  w\as  the  case  of  a  clergyman  whose  pastoral  relations  to 
his  society  were  almost  sufficient,  without  any  other  considerations, 
to  determine  his  domicile. 

He  had  left  his  former  place  of  residence,  closed  Ms  connection 
with  the  society  there,  and  never  expected  to  act  as  their  pastor 
again. 

He  had  commenced  preaching  in  Georgetown,  and  had  no  occu- 
pation in  any  other  place.  He  was  engaged  positively  as  their 
preacher  and  pastor  for  four  months,  and  as  the  people  seemed 
united  on  him,  and  liad  voted  to  break  off  a  partial  engagement 
with  another  preacher,  who  had  been  preaching  as  a  candidate  for 
some  time  previously,  he  had  every  reason  to  suppose  that  he 
should  remain  there  permanentl}'.  And  he  did  remain.  It  is  true 
that  he  did  not  move  his  family  to  Georgetown  till  some  time  after 
he  commenced  preaching  there,  but  while  he  spent  a  portion  of  his 
time  with  them  in  Essex,  his  pastoral  relations,  duties,  responsi- 
bilities, expectations  and  home  were  all  in  Georgetown. 

We  fail  to  see  the  case  of  Mr.  Jones  in  the  Georgetown  case, 
but  think  its  parallel  is  to  be  found  in  the  case  of  Elijah  Pratt,  of 
Webster,  Contested  Election  Reports  (Cushing  S.  &  J.),  .')26. 
And  that  the  decision  of  the  committee  in  that  case  applies  in  all 
respects  to  the  case  of  Mr.  Jones. 

The  committee,  in  their  decision  in  tliat  case,  sa}-,  as  follows : 
No  man  loses  an  old  and  acquires  a  new  residence,  until  his  inten- 
tion of  changing  his  residence  ceases  to  be  in  suspense  and  becomes 
fixed. 


HINKS   V.    JONES.       HOUSE,    1850.  33 

If  the  removal  depends  on  any  contingency-  or  doubt,  the  resi- 
dence is  not  changed  till  the  contingenc}'  ceases.  The  removal  of 
Mr.  Jones  to  Boston  did  depend  on  a  contingency,  and  a  contin- 
gency so  great  as  to  amount  to  an  effectual  barrier  for  the  time 
being,  and  to  oblige  him  to  reside  in  East  Cambridge  for  months 
after  he  left  the  Quincy  House. 

The  committee  also  rel}"  on  the  decisions  in  the  case  of  Jenni- 
son  V.  Hapgood,  10  Pick.  Rep.  77  ;  and  in  Abington  v.  North 
Bridge  water,  23  Pick.  Rep.  1 70  ;  and  in  accordance  with  those 
and  other  established  precedents,  they  fail  to  see  how  the  said 
Jones,  b}'  any  act  shown  to  have  been  done  by  him,  or  J)y  an}' 
desire  or  wish  shown  to  have  been  cherished  by  him  could  liave 
lost  his  domicile  in  Cambridge,  or  have  gained  one  at  Boston, 
until  he  moved  there  in  March  or  April,  of  1855. 

Thev  are  therefore  of  the  opinion  that  Justin  Jones,  one  of  the 
sitting  members  of  this  house,  from  the  cit}'  of  Boston,  was  ineligi- 
ble at  the  time  of  his  election,  on  the  6th  of  November  last,  he  not 
having  been  an  inhabitant  of  the  city  of  Boston  for  one  year  previ- 
ous to  his  election  —  and  that  he  is  not  entitled  to  a  seat  in  this 
house. 

The  onl}-  important  question  which  now  remains  for  the  com- 
mittee to  decide  is  the  following,  to  wit :  Should  the  votes  cast 
for  Mr.  Jones  be  counted  as  such,  or  should  they  be  treated  as 
blanks?  Upon  the  decision  of  this  question  depends  so  much  of 
this  case  as  relates  to  Charles  C.  Conley.  If  the  votes  for  Jones 
should  be  treated  as  blanks,  then  there  were  two  vacancies,  which 
would,  by  implication  of  the  plurality  law,  have  been  filled  by  the 
next  two  highest  candidates,  at  the  election  on  the  6th  of  Novem- 
ber last. 

Mr.  Conley  was  not  one  of  those  next  highest  candidates,  and  if 
we  decided  to  call  the  votes  for  Jones  so  man}-  blanks,  then,  as  the 
first  election  would  have  been  complete,  the  second  would  be  void, 
and  Mr.  Conley  would  be  unseated. 

But  the  committee  are  of  opinion  that  the  votes  cast  for  said 
Jones  should  not  be  treated  as  blanks.  The  five  thousand  three 
hundred  and  thirty-three  voters,  who  voted  for  Justin  Jones,  are 
presumed,  in  the  absence  of  all  testimony  to  the  contrarj-,  to  have 
voted  in  good  faith.  They  evidently  did  not  intend  to  throw  away 
their  votes,  and  if  not,  we  believe  that  their  intent  should  be 
respected,  and  that  they  should  have  an  opportunity  of  correcting 
their  error,  and  of  making  another  choice. 

The  cases  that  have  been  cited  as  precedents  to  govern  in  this 
decision  do  not  seem  to  apply  with  much  force,  as  they  are  all 


34         :MA>;siArTirsETTs  election  tasf*;  —  isr>;i-i885. 

cases  where  votes  were  sni)pose(l  lo  have  been  thrown  by  mis- 
take, or  intentionally  thrown  for  a  candidate  known  to  be 
ineligible. 

This  was  the  fact  in  the  Somerset  case,  Contested  Election  Re- 
ports (Cashing,  S.  &  J.),  p.  .")76,  and  the  committee  there  say, 
that  "  there  is  no  reas(,n  why  a  person  who  votes  for  an  ineligible 
canditlate  should  not  be  put  upon  the  same  footing  with  one  who 
does  not  vote  at  all,  as  in  both  cases  the  parties  show  a  disposition 
to  prevent  an  electi(m."  This  decision  was  clearly  on  the  ground 
that  the  parties  knew  they  were  voting  for  ineligible  candidates  ; 
and  that  reasoning  cannot  apply  in  this  case. 

The  same  is  true  in  the  Attleboro'  case,  Contested  Election 
Reports  (Cushing,  S.  and  J.),  p.  2o4,  and  of  the  case  of  Wilkes 
and  Tjutlrelh  in  England  ;  the  voters  knew  they  were  voting  for 
ineligible  candidates. 

In  view  of  this  difference  between  the  cases  cited,  and  the  one 
under  consideration,  and  in  view,  also,  of  a  report  made  by  the 
majority  of  a  committee  of  the  House  of  Representatives  in  1843, 
in  which  report  the  said  majority  of  that  committee  say  that  "  no 
votes  should  be  rejected  from  the  count  simply  on  acc<niut  of  the 
ineligibility  of  the  candidates  voted  for," — 3'our  committee  are 
unanimously  of  opinion  that  the  votes  for  Justin  Jones  should  be 
counted  as  such,  and  that  consequently,  the  election  of  Mr.  Conley 
was  valid,  and  that  he  is  entitled  to  his  seat. 

[A  minority  report  was  made  by  INIessrs.  Lamb  and  Fenno,  in 
which  the}'  found  that,  upon  the  evidence,  Mr.  Jones  had  resided 
in  lioston  for  one  year  next  preceding  his  election,  and  was  there- 
fore eligible.  Upon  presentation  of  the  reports,  the  House 
accepted  the  report  of  the  majority  (H.  J.,  l-SoG,  p.  416).  The 
accei)tance  was  afterwards  reconsidered,  and  a  motion  to  substitute 
the  minority  for  the  majorit}'  report  was,  after  debate,  lost  bj'  a  vote 
of  97  yeas  to  13(i  nays  (H.  J.,  p.  428).  The  majority  report  was 
afterwards  accepted  l)y  a  vote  of  I06  to  111  (H.  J.,  p.  478),  and 
later  was  again  reconsidered,  under  a  suspension  of  the  rules,  and 
recommitted  to  the  committee  (H.  J.,  pp.  481,  492,  493,494). 
The  committee  again  considered  the  case,  and  a  majority,  Messrs. 
Fletcher,  Ilotre.s.  Lnnt  and  Morrill  made  another  elaborate  report, 
dated  April  24,  18.50.  aflirming  their  previous  report  that  Mr.  Jones 
had  not  resided  in  P>oston  the  period  required  to  render  him  eligible 
for  election.  A  minority  of  the  committee,  Messrs.  Lamb,  Taylor 
and  Fenno  reported  that  the  evidence  failed  to  prove  his  ineligibil- 
ity.    The  reports  are  in  House  documents   for   18.56,   No.    224. 


J)AY    V.    TAFT.       HOUSE,    185C.  35 

Upon  presentation  of  these  reports,  they  were  laid  upon  the  table 
(H.  J.,  p.  1118),  and  no  further  action  appears  to  have  been  taken. 
The  editors  publish  the  first  report  of  the  majority,  as  in  their  opin- 
ion correct,  and  vahiable  as  a  precedent.] 


Joseph   Day  v.    Charles   A.  Taft. 

House  Document,  No.  143,  March  29,  185G.     Report  by  all  the  Committee. 

[In  this  case  the  election  of  the  sitting  member,  returned  by  a 
pluralit}'  of  one  vote,  was  controverted  on  the  ground  that  votes 
for  the  opposing  candidate  were  offered  and  illegallj-  refused  ;  that 
a  vote  for  the  sitting  member  by  a  person  without  the  required 
qualiflcation  of  residence,  was  received  and  counted ;  and  that 
some  persons  were  allowed  to  vote  for  State  officers  in  sealed 
envelopes,  and  for  representative  by  open  ballots,  thereby  having 
an  opportunity  for  double  voting.  The  report  of  the  committee 
deals  entirely  with  questions  of  fact,  and  finds  that  the  allega- 
tions of  the  remonstrant  were  not  sustained  by  the  evidence. 
As  the  case  involved  no  question  of  law,  it  is  not  of  value  as  a 
l)recedent.] 


36  MASSACHUSETTS    ELECTION   CASES 1853-1885. 


HOUSE  — COMMITTEE    ON    ELECTIONS,    1858. 

Marcus  Mortox,  Jr.,  of  Andover,  Chairman ;  Dana  Holdex  of  Billerica, 
Jaaies  Bexxett  of  Leominster,  Rich.\rd  S.  Spofford,  Jr.,  of  New- 
bur3'port,  Edward  H.  R.  Ruggles  of  Dorchester,  Chester  Good  ale  of 
Egremont,  and  Johx  Lovejoy  of  Lynn. 


Sylvander  Johnson  v.  Lansing  J.  Cole. 

House  document,  No.  20.     January  28,  1858.     Report  hj  Marcus  Mor- 
tox, Jr.,  Chairman. 

Irregularities  in  Returns  do  not  affect  Election.  An  election  will  not  be  invalidated 
merely  on  account  of  subsequent  neglect  or  irregularity  on  the  part  of  election 
oflScers  in  making  up  the  returns,  if  the  will  of  the  voters  legally  expressed  can  be 
ascertained  with  certainty. 

Same.  The  provisions  of  the  Act  of  1857,  ch.  311,  ^  5  (substantially  the  same  as 
Pub.  Sts.  ch.  8,^8),  regarding  the  mode  of  recording  the  result  of  the  election,  and 
making  and  sealing  up  in  open  town  meeting  a  true  transcript  of  the  record  of  the 
result,  and  delivering  the  same  to  the  clerk,  are  directory,  rather  than  mandatory, 
and  not  conditions  upon  which  the  right  of  the  voters  to  be  represented  depends. 

Same.  So,  the  opening  by  the  town  clerk  of  the  envelope  sealed  in  open  town 
meeting,  and  exhibiting  the  transcript  to  a  selectman  of  another  town  in  the  district 
and  then  resealing  it,  —  making  the  record  and  transcript  after  the  adjournment  of 
the  town  meeting  instead  of  in  open  town  meeting,  —  making  up  the  record  after 
adjournment  of  town  meeting,  and  carrying  to  the  meeting  of  the  clerks,  on  the 
following  day,  an  attested  copy  not  signed  by  the  selectmen  or  sealed  up,  —  making 
up  the  record  on  the  second  day  after  the  town  meeting,  and  then  drawing  up  a  state- 
ment of  the  votes  for  representatives,  signed  by  a  majority  of  the  selectmen  and  by 
the  clerk,  sealed  up  and  delivered  to  the  clerk  in  open  town  meeting,  and  by  him 
carried  to  the  meeting  of  the  clerks  on  the  next  day,  with  the  accidental  omission  of 
the  year  of  the  election;  —  while  violations  of  law,  on  the  part  of  the  election  officers, 
arc  not  such  irregularities  as  will,  in  the  absence  of  fraudulent  purpose  or  intentional 
violation  of  duty,  invalidate  the  election. 

The  Committee  on.  Elections,  to  whom  was  referred  the  petition 
of  Sylvander  Johnson  of  Adams  pra3'iug  that  he  may  be  allowed 
a  seat  in  the  House  as  one  of  the  representatives  of  District  No.  2, 
in  the  county  of  Berkshire,  in  the  place  of  Lansing  J.  Cole  of 
Cheshire,  report :  — 

District  No.  2  in  the  count}'  of  Berkshire  is  composed  of  the 
towns  of  Adams,  Cheshire,  Clarksburg,  Florida  and  Savoy,  and  is 
entitled  to  two  representatives.  *  *  *  * 

The  clerks  of  the  several  towns  in  said  district  dul^'  met,  accord- 
ing to  law,  on  the  day  following  the  election,  for  the  purpose  of 
ascertaining  who  were  elected  representatives  of  such  district  by 


JOHNSON   V.    COLE.       HOUSE,    1858.  37 

the  legal  voters  thereof.  It  appears,  by  the  record  of  their  pro- 
ceedings, that  the.y  rejected  the  Azotes  from  the  town  of  Savoy,  "  in 
consequence  of  informalit}-  in  not  being  sealed  up."  The  effect  of 
thus  rejecting  the  vote  of  Savoy,  was  to  give  Russell  C.  Brown  of 
Cheshire  and  Lansing  J.  Cole  of  Cheshire,  a  plurality  of  the  votes 
counted,  and  the  said  clerks  thereupon  declared  said  Brown  and 
Cole  duly  elected,  and  issued  their  certiflcates  accordingl}-. 

The  investigation  before  the  committee  took  a  wide  range. 
Upon  the  record  of  the  proceedings  at  the  meeting  of  the  clerks,  it 
appears  that  the  only  question  raised  was,  whether  or  not  the  vote 
of  the  town  of  Savoy  should  be  rejected  because  the  transcript  was 
not  sealed  up  ;  but  upon  the  hearing  before  the  committee,  the 
parties  alleged  that  similar  and  equally  important  informalities 
occurred  in  the  proceedings  of  the  officers  of  the  other  towns  in  the 
district ;  and  it  therefore  became  necessary  to  examine  into  the 
formality  and  regularity  of  the  proceedings  of  the  selectmen  and 
clerks  of  each  of  said  towns. 

The  provisions  of  law  regulating  the  duties  of  selectmen  and 
town  clerks,  which  are  alleged  to  have  been  violated  in  this  case, 
are  contained  in  the  Act  of  1857,  chapter  311,  section  5.* 

After  the  votes  are  received,  sorted,  counted  and  declared,  this 
act  provides  '•'■  the  result  of  said  ballotings  shall  be  recorded  in  the 
town  bi)ok  of  records,  according  to  the  declaration  thereof  made, 
and  the  selectmen  and  town  clerk  shall,  forthwith,  make  out  under 
their  hands,  and  seal  up,  in  open  town  meeting,  a  true  transcript 
of  the  record  of  such  result  and  deliver  the  same  to  the  clerk."  It 
is  then  made  the  duty  of  the  clerk  to  take  this  transcript,  thus 
sealed  up,  to  the  meeting  of  the  clerks  of  the  several  towns  forming 
the  district,  directed  to  be  held  the  day  following  the  election. 
There  is  no  express  provision  that  the  clerk  shall  not  break  the 
seal,  and  open  the  transcript  before  the  said  meeting  of  the  clerks, 
but  the  committee  think  that,  by  necessary  implication  from  the 
provisions  of  the  act,  it  is  clearly  a  breach  of  duty,  and  violation  of 
law  in  the  clerk  to  do  so. 

The  committee  regret  to  find  that  in  no  one  of  the  towns  com- 
posing  this  district,  were  these  provisions  of  law,  in  all  respects? 
complied  with 

They  submit  a  brief  statement  of  the  facts  in  regard  to  each  town. 

In  all  the  towns  the  votes  were  duly  received,  sorted,  counted 
and  declared  in  open  town  meeting. 

In  the  town  of  Florida,  the  clerk  recorded  the  result  of  the 
balloting,  and  a  transcript  of  the  record  was  duly  made,  signed, 

*  Substantially  the  same  provisions  as  those  now  contained  in  Pub.  Sts.  ch.  8,  $  8. 


38  AlASSACIirsKTTS    KJJ'.rTlON    TASKS 185:5-1885. 

sealed  up,  and  delivered  to  the  clerk  in  open  town  meeting.  But  on 
the  morning  of  the  day  following,  some  hours  previous  to  the  meeting 
of  the  clerks,  the  clerk  of  Florida  broke  open  the  scaled  envelope 
containing  such  transcript,  aud  exhibited  the  transcript  to  one  of 
the  selectmen  of  Adams.  He  afterwards,  before  the  meeting  of  the 
clerks,  re-sealed  it. 

In  the  towns  of  Adams  and  Clarksburg,  the  record  and  transcript 
were  made  after  the  adjournmeut  of  the  meeting,  the  only  irregularity 
being,  that  they  were  not  made  in  open  town  meeting. 

In  the  town  of  Savo}^  the  clerk  made  up  his  record  after  the 
adjournment  of  the  town  meeting,  and  carried  to  the  meeting  of  the 
clerks  on  the  next  day.  an  attested  copy  thereof,  which  does  not 
appear  to  have  been  signed  by  the  selectmen,  or  sealed  up. 

In  the  town  of  Cheshire,  the  clerk  made  up  his  record  on  the 
second  day  after  the  town  meeting.  A  statement  of  the  votes  for 
representatives  was  drawn  up,  signed  by  a  majority  of  the  select- 
men and  by  the  clerk,  sealed  up  and  delivered  to  the  clerk  in  open 
town  meeting,  and  b}^  him  carried  to  the  meeting  of  the  clerks  on 
the  next  day.  By  an  accidental  omission,  the  year  in  which  the 
election  was  held  did  not  appear  upon  this  statement. 

It  should  be  stated  that  there  is  no  suspicion  of  any  fraudulent 
purpose  or  any  intentional  violation  of  duty  on  the  part  of  an}'  one 
of  the  officers  of  the  several  towns.  The  law  was  of  recent  enact- 
ment, and  most  of  the  town  officers  were  not  familiar  with  its  pro- 
visions, and  were  thus  led  into  informalities  which  will  not  be  likely 
to  occur  in  future. 

The  question  which  arises  under  this  state  of  facts,  is,  whether 
the  neglect  of  the  town  officers  to  comply  with  the  requirements  of 
law,  as  proved  in  this  case,  ought  to  have  the  effect  to  invalidate 
the  election,  and  defeat  the  will  of  the  voters  fairly  and  legally 
expressed  through  the  ballot-box.  The  committee  are  of  the  opin- 
ion, that  the  provisions  of  law  under  consideration,  are  directory 
to  the  officers  of  the  towns  merel}',  and  are  not  conditions,  upon 
which  the  right  of  the  voters  to  be  represented  depends.  It  should 
be  borne  in  mind,  that  in  tliis  case  there  has  been  no  violation  of 
any  provisions  of  law  defining  the  duties  of  voters  or  affecting  the 
integrity  of  the  election.  The  citizens  faithfully  observed  all  the 
regulations  imposed  by  law,  as  the  conditions  upon  which  the}'  are 
to  exercise  their  highest  right  under  the  constitution,  the  right  of 
suffrage,  and  no  subsequent  neglect  of  duty  by  the  recording  or 
returning  officers  should  be  allowed  to  operate  to  disfranchise 
them.  The  only  provisions  of  law,  which  Avere  violated  in  this 
case,  are  provisions  defining  the  duties  of  town  officers  subsequent 
to  the  election;  and  to  hold  that  any  neglect  to  comply  with  these 


MARTIN    '•.    BROWN.       HOUSP:,    1858.  39 

provisions  shall  disfranchise  the  voters,  would  be  to  place  it  in  the 
power  of  any  designing  or  ignorant  recording  or  returning  officer, 
to  entirely  defeat  the  right  of  suffrage. 

Tiie  principle  which  should  govern  this,  and  kindred  cases,  seems 
to  be,  that  the  will  of  the  people,  legally  expressed  through  the  . 
ballot-box,  if  it  can  be  ascertained  witli  certainty,  shall  prevail. 

The  committee  believe  that  the  principles  of  construction  which 
tliey  apply  to  the  provisions  of  law  in  question,  are  in  accordance 
with  the  uniform  decisions  of  this  house  in  cases  of  controverted 
elections,  and  have  also  received  the  sanction  of  the  highest  judicial 
tribunal  of  the  Commonwealth. 

Applying  the  principles  above  stated  to  the  facts  of  this  case, 
it  results,  that  the  votes  of  all  the  towns  in  the  district  should  be 
counted,  and  that  Russell  C.  Brown  and  Sylvander  Johnson,  having 
received  a  plurality  of  the  votes  cast  in  the  district,  were  elected. 

Your  committee  therefore  report  that  the  said  Lansing  J.  Cole 
is  not  entitled  to  a  seat  in  this  House  ;  and  that  the  said  Sylvander 
.Johnson  was  duly  elected  one  of  the  representatives  of  the  second 
district  in  the  count}'  of  Berkshire,  and  is  entitled  to  his  seat. 

[The  report  of  the  committee  was  accepted.    H.  J.  1858,  p.  150.] 


William  Martin   v.  Russell  C.  Brown. 

House  Document,  No.  21.     1858. 

[This  was  considered  as  part  of  the  case  of  Johnson  v.  Cole, 
supra,  and  depended  upon  the  same  faets.  The  petitioner  had 
leave  to  withdraw,  and  the  report  was  accepted.  H.  J.  1858, 
p.  150.] 


40  MASSACHUSETTS   ELECTION   CASES 1853-1885. 


Samuel  Beck  et  als.  v.  Sedgwick  L.  Plummer  et  al. 

•House.    Unprinted.    January  29, 1858.    Report  by  Marcus  Morton,  Jr., 

Chairman. 

Failure  to  make  Transcript  of  Record  in  Open  Town  Meeting.  —  The  provisions  of 
sect.  5,  cbap.  311,  Acts  of  1857  (Pub.  Sts.,chap.  8,  \  8),  are  merely  directory  to  the 
town  officers,  and  a  fliilure  to  comply  with  them  will  not  invalidate  an  election  for 
representative  legally  and  fairly  conducted,  the  result  of  which  can  be  ascertained 
with  certainty. 

The  Committee  on  Elections,  to  whom  was  referred  the  remon- 
strance of  Samuel  Beck  and  others,  against  the  right  of  Sedgwick 
L.  Plummer  and  Edward  J.  Collins  to  hold  seats  in  this  House, 
from  District  No.  8,  in  Middlesex  County,  report : 

The  Eighth  Middlesex  District  is  composed  of  the  towns  of 
Newton  and  Brighton,  and  is  entitled  to  two  representatives. 

If  the  votes  cast  in  both  towns  at  the  late  election  are  to  be 
counted,  the  said  Sedgwick  L.  Plummer  and  Edward  J.  Collins 
have  a  large  pluralit}',  and  are  entitled  to  their  seats. 

The  remonstrants  allege  that  the  record  of  the  result  of  the 
balloting  in  the  town  of  Newton  was  not  made  up  in  open  town 
meeting,  and  that  a  transcript  of  such  record  was  not  made,  signed 
and  sealed  up  in  open  tow-n  meeting,  according  to  the  provisions 
of  the  Act  of  1857,  chapter  311,  section  5;  and  they  therefore 
contend  that  the  votes  of  the  town  of  Newton  ought  to  be  rejected. 
The  facts,  as  proved  to  the  committee,  are  as  follows  :  The  recoid 
of  the  town  meeting  in  Newton  was  made  up  after  the  adjournment 
of  the  meeting.  The  clerks  of  the  two  towns  met  at  the  town  hall 
in  Newton  on  the  day  following  the  election,  according  to  law. 
The  clerk  of  Newton  had,  at  this  meeting,  the  original  minutes  of 
the  votes  for  representatives,  from  which  the  selectmen  had  made 
the  public  declaration  in  open  town  meeting,  and  from  which  he 
had  made  up  his  record. 

The  clerk  of  Brighton  had,  at  this  meeting,  what  purported  to  be 
a  transcript  of  the  record  of  the  result  of  the  balloting  in  that 
town,  duly  signed  and  sealed  up  ;  but  his  record  was  not  made  up 
in  open  town  meeting  ;  he  made  up  his  record  after  the  adjourn- 
ment of  the  meeting,  at  which  the  paper  which  he  calls  a  transcript 
was  made,  and  sealed  up. 

It  thus  appears  that  the  provisions  of  the  Act  of  1857,  chapter 
311,  section  5,  were  not  complied  with,  in  either  town.  The  com- 
mittee are  of  the  opinion  that  these  provisions  are  directory  to  the 


CUMMINGS    v.    SHTJMAVAY.       HOUSE,    ISoS.  41 

town  officers  merely,  and  that  a  failure  to  conipl}'  with  them  by 
such  officers  ought  not  to  invalidate  an  election  legally  and  fairly 
conducted,  and  by  which  the  result  can  be  ascertained  with  cer- 
tainty. In  this  case  there  is  no  doubt  about  the  legality  and  fair- 
ness of  the  election,  and  it  is  admitted  that  if  effect  is  given  to  the 
will  of  the  voters,  as  legally  expressed,  the  sitting  members  are 
entitled  to  their  seats.  The  committee,  therefore,  recommend  that 
the  remonstrants  have  leave  to  withdraw. 

[The    report   of  the   committee    was    accepted.      H.    J.    1858, 
p.  164.] 


Allen   Cuivimings  v.  Eliel,  Shumway. 

House    document,    No.    31.      February    2,    1858.       Report    by    Marcus 

MoRTOx,  Jr.,  Chairman. 

Error  in  Transcript  of  Record  corrected.  Where  tlie  transcript  of  the  record  of  the 
vote  of  a  town,  carried  l)y  the  town  clerk  to  the  meeting  of  clerks  on  the  day  fol- 
lowing the  election,  showed  that  fifty-two  votes  were  given  for  Alden  Ciimmings, 
while  the  record  itself  showed  that  these  votes  were  given  for  Allen  Cummings,  — 
they  were  connted  for  the  latter. 

Evidence.  Additional  Votes  proved  to  have  been  cast  for  Contestant.  Where  the 
contestant  and  sitting  member  ran  on  the  same  ticket,  and  each  was  given,  upon  the 
returns  from  a  town,  the  same  number  of  votes,  the  sitting  member  was  allowed  to 
prove  that  only  the  votes  upon  the  regular  ticket  had  been  counted  for  him,  and 
that  nineteen  persons  voted  for  him,  who  did  not  vote  tbe  regular  ticket,  or  for 
the  contestant,  —  and  thereupon  it  was  held  that  nineteen  votes  should  be  added  to 
those  returned  for  him. 

Tappan  Went  worth,  for  petitioner. 

George  S.  Botjt well, /or  sitting  member. 

The  Committee  on  Elections  to  whom  was  referred  the  petition 
of  Allen  Cummings,  of  Dunstable,  claiming  to  be  admitted  to  a  seat 
as  a  member  of  the  House  from  the  twenty-sixth  district  in  the 
county  of  Middlesex,  in  the  place  of  Eliel  Shumway,  of  Groton, 
report : 

The  said  district  is  composed  of  the  towns  of  Shirley,  Groton, 
Dunstable,  AVestford  and  Pepperell,  and  is  entitled  to  two  repre- 
sentatives. 

The  petition  sets  forth  that  it  appears  from  the  records  of  the  sev- 
eral towns  in  said  district,  that  at  the  annual  election  in  November 


\>  MA»\«  111  SF.TTS    KLKITION    CASES 1853-1885. 

last,  the  petilionor  received  tbree  huDdred  and  fifty-one  votes  for 
representative,  and  tliat  the  sitting  member,  Eliel  Sbumwa^-,  re- 
ceived onlv  three  hi.ndred  and  forty-three  votes.  It  was  admitted 
that  the  transcript  of  the  record  of  the  vote  of  Shirley,  which  was 
cuirrieil  bv  the  clerk  of  Shirley  to  the  meeting  of  clerks  held  on  the 
day  following  the  election,  declared  that  fifty-two  votes  were  given 
for  Aldtn  Cummings,  whereas  it  appears  from  the  record  itself  that 
these  votes  were  given  for  Allen  Cummings.  In  consequence  of 
this  error,  the  certificate  of  election  was  issued  to  Eliel  Shumway, 
the  sitting  member. 

The  answer  of  Mr.  Shnmway  admits  the  truth  of  the  facts  set 
forth  in  the  petition,  but  asserts  that  there  were  errors  in  count- 
ing, declaring  and  recording  the  votes  in  the  town  of  Groton  ;  that 
b/the  ree<irds  of  said  town  of  Oroton,  it  appears  that  said  Shum- 
w-ay  received  only  one  hundred  and  thirty-two  votes,  whereas  in 
fact,  he  received  one  hundred  and  fifty-one  votes  or  more,  and  that 
if  the  votes  of  Croton  had  been  counted,  declared  and  recorded 
correctly,  he  would  have  been  duly  elected. 

The  record  of  the  votes  for  representatives  in  Groton  was  as 
follows :  — 

Whole  number  of  ballots, ^83 

Kliel  Shumway,  of  Grotou,  had 132 

Allen  Cummings,  of  Dunstable,  had       ....  132 

Rol)ert  P.  Woods,  of  Groton,  had 126 

Andrew  .Spaultling,  of  Dunstable,  had    ....  70 

Norman  Shalluck,  of  Grotou,  liad 8 

John  W.  P.  Abbot,  of  Westford,  had       ....  69 

It  is  agreed  that  the  names  of  Shumway  and  Cummings  were 
generally  borne  upon  the  same  ballots,  they  being  the  regular  can- 
didates of  the  same  political  part}' ;  and  it  was  claimed  b}'  Mr. 
Shumway.  tiiat  Shumway  find  Cummings  received  each  one  hun- 
<lr«-<l  and  thirty-two  votes,  upon  the  same  one  hundred  and  thirty- 
two  Itallots,  and  that  the  scattering  votes  for  said  Shumway  and 
Cummings  were  accidentally  omitted,  either  b}'  the  selectmen  in 
counting  and  declaring,  or  by  the  clerk  in  recording,  tbe  votes  of 
the  town. 

The  c/)mmitt('e  submit  an  abstract  of  the  testimony  laid  before 
them. 

Tiie  vot*  -  ,w,  lepresentatives  were  received  in  a  box  by  them- 
selves. Innnediately  after  the  polls  were  closed,  a  meeting  was 
organized,  in  the  .same  room,  for  the  transaction  of  town  business. 
The  chairman  of  the  selectmen  and  the  town  clerk  were  occupied 


COTIiMLXU.s    r.    SIHJ.MWAV.       irorsE,     1858.  43 

1)}'  the  business  of  this  meeting,  Ibr  about  half  an  hour.  The  other 
two  selectmen  (Robert  P.  Woods  and  Norman  Shattuck)  pro- 
ceeded at  once  to  sort  and  count  the  votes.  They  separated  the 
ballots  for  representatives  into  four  parcels,  one  parcel  for  each  of 
the  three  regular  tickets,  and  one  parcel  for  the  irregular  or  scat- 
tering ballots.  All  the  witnesses  agree  that  the  largest  parcel  of 
regular  tickets  bore  the  names  of  Shumwa^'  and  Cummings,  and 
that  Mr.  Shumway's  name  was  also  borne  upon  some  of  the  scat- 
tering ballots,  though  the}- differed  in  their  estimate  of  the  number. 
The  witnesses  also  all  agree  that  there  were  only  four  or  five  single 
ballots,  or  ballots  bearing  onl^'  one  name.  The  town  clerk  (George 
D,  Brigham)  testified,  that  after  the  town  business  had  been  disposed 
of,  he  saw  the  chairman  of  the  selectmen  count  the  largest  parcel 
of  votes,  containing  the  names  of  Shumwa}'  and  Cummings  ;  that 
at  first  he  made  the  number  one  hundred  and  thirty-one,  but  finding 
this  to  be  one  less  than  the  count  which  had  been  made  by  the  other 
selectmen,  he  counted  it  again,  and  made  the  number  one  hundred 
and  thirtj'-two,  thus  agreeing  with  the  other  selectmen. 

The  chairman  of  the  selectmen  (Joshua  Gilson)  testified  that  he 
counted  the  parcel  of  regular  tickets  for  Shumway  and  Cummings, 
and  that  he  did  not  count  any  other  ballots  containing  the  name  of 
Shumway  ;  but  he  could  not  state,  from  his  recollection,  how  many 
ballots  this  parcel  contained.  Another  witness  (J.  J.  Randall) 
testified,  that  he  stood  so  near  the  table  that  he  could  read  the 
names  on  the  ballots,  that  he  saw  the  other  two  selectmen  Count 
the  parcel  of  ballots  which  bore  the  names  of  Shumwaj^  and  Cum- 
mings, that  tlie  witness  counted  with  the  selectmen  and  made  the 
number  of  ballots  one  hundred  and  thirty-two,  and  that  he  saw 
one  of  the  selectmen  write  the  number  one  hundred  and  thirty-two 
on  a  piece  of  paper,  as  the  result  of  his  own  count  of  the  said 
parcel  of  ballots. 

Another  witness  (E.  S.  Clark)  testified  that  he  saw  one  of  the 
selectmen  count  the  i)arcel  of  regular  ballots  for  Shumw^ay  and 
Cummings ;  that  he  inquired  of  him  the  number  of  votes  for 
Shumway  and  Cummings,  and  was  told  that  they  had  received  one 
hundred  and  thirtj^-two  votes  each.  All  these  witnesses  testified 
that  there  was  a  parcel  of  scattering  votes  on  the  table  which  had 
not  been  counted  to  make  up  tlie  one  hundred  and  thirty-two  votes 
in  question.  There  was  some  testimon}^  tending  to  contradict 
these  witnesses,  but  not  enough  to  affect  their  credibility  or  accu- 
racy, in  the  minds  of  the  committee.  The  other  tw^o  selectmen 
testified  that  the}-  sorted  and  counted  the  votes  in  the  usual  man- 
ner, and  they  believe  that  they  declared  them,  aiid  g-we  them  to 
the  town  clerk  correctly. 


41  MA>SA(lirsKTTS    ElF.rTlOX    CASES 1853-1885. 

There  was  a  great  ditfereuce  of  opinion  between  the  different 
witnesses  as  to  "the  number  contained  in  the  parcel  of  scattering 
ballots,  but  no  one  estimated  it  to  be  more  than  thirty. 

No  witness  could  testify  from  memory  hoAV  many  votes  Shumway 
or  Cummings  had  in  tbis  parcel.  The  two  selectmen  (Woods  and 
Shattnrk)  thought  that  the  number  of  scattering  votes  for  Shum- 
way and  Ciuiimings  was  equal,  but  the  other  witnesses,  who  spoke 
to  this  i)oint,  testified  that  Shumway's  name  was  borne  on  most  of 
the  scattering  ballots,  while  Cummings's  name  was  on  few,  if  any, 

of  Ibeni. 

Had  the  case  stopped   here,  the  committee,  though  satisfied  that 
there  was  an  error  in  the  record,  might  have  found  it  difficult  to 
determine   whether  Shumway  or  Cummings  was  elected.     But  it 
further  appeared,  from  the  testimony  of  sixteen  legal  voters,  that 
each  of  them  voted  for  Mr,  Shumway  and  some  other  person,  not 
Mr.  Cummings  ;  and  from  the  testimony  of  three  other  voters,  that 
each  of  them  voted  for  Mr.  Shumway  and  no  other  person  ;   thus 
proving  that  Mr.  Shumway  had  nineteen  votes,  at  least,  in  the  parcel 
of  scattering  ballots.     It  also  appeared  that  there  was  one  ballot 
for  Cummings  and  Woods ;  and  it  was  not  shown  that  Mr.  Cum- 
niiugs  received  any  other  scattering  votes.     Unless  we  discredit 
the  testimon}-  of  these  nineteen  witnesses,  we  are  constrained  to 
regard  the  testimony  of  those  who  state  that  the  number  of  scatter- 
ing votes  fir  Sluunw-ay  and  Cummings  was  precisely  equal,  as  the 
result  of  an  inference  from  the  appearance  of  the  record,  rather 
than   an  exercise  of  the  memory.     That  there  is  an  error  is  ap- 
parent froui  the  record  itself,  and   was  admitted   by  both  sides. 
After  allowing  for  the  four  single  ballots  proved  to  have  been  cast, 
the  whole  numl)er  of  ballots  does  not  correspond  with  the  aggregate 
nunil)er  of  votes  for  the  different  candidates  ;  but  if  the  scattering 
votes  shown  to  have  been  cast  for  Mr.  Shumway  and  Mr.  Cum- 
mings be  added  to  their  recorded  votes,  it  would  reconcile  the 
record  with  itself  as  nearly  as   from  the  nature  of  the  case  could 
be  expected 

The  cotnmitlee  are  satisfied  that  Mr.  Shumwa}^  received  one 
hun<ired  and  fifty -one  votes  and  that  Mr.  Cummings  received  one 
Imndred  and  thirty-three  votes,  in  the  town  of  Groton,  making  the 
whole  vote  of  Mr.  Shumway  in  the  district,  three  hundred  and 
8ixty-two.  and  the  whole  vote  of  Mr.  Cummings  in  the  district 
three  hnudreil  ajid  lifty-two.  The  committee  therefore  recommend 
that  the  petitioner  have  leave  to  withdraw. 

[The  report  oi  lUc  committee  was  accepted.  H.  J.,  1858, 
..    171.] 


TAFT   V.    COLE.       HOUSE,    1858.  45 


Calvin  R.  Taft  v.   John  M.  Cole. 

House  document,  No.  36,  Februaiy  4,  1858.    Report  by  Richard  S.  Spof- 

FORi>,  Jr. 

Envelopes  containing  Ballots  must  be  official.  Section  2  of  chapter  36  of  the  Acts  of 
1853  (substantially,  section  4  of  chapter  7  of  the  Public  Statutes),  prescribing  the 
kind  of  envelope  to  be  used  at  elections,  and  providing  that  no  other  envelopes  shall 
be  used  at  the  polls,  is  not  merely  directory,  but  being  prohibitory  in  expression 
and  eflfect,  is  mandatory,  and  ballots  enclosed  in  envelopes  not  bearing  the  seal  of 
the  Commonwealth,  should  not  be  counted. 

See  contra,  Whitaker  v.  Cummings,  post. 

James  T.  B.OBI^ssOJii,  for  petitioner. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Calvin  R,  Taft,  of  Williamstown,  for  the  seat  in  the  House  of 
Representatives  now  occupied  b}'  John  M.  Cole,  have  considered 
the  same,  and  respectfully  submit  thereon  the  following  report : 

The  first  representative  district  in  Berkshire  Count}',  is  com- 
posed of  the  towns  of  Williamstown,  Lanesborough,  Hancock  and 
New  Ashford,  and  is  entitled  to  one  representative.  At  the  last 
election  in  said  district,  the  whole  number  of  votes  cast  for  repre- 
sentative was  six  hundred  and  sixtj'-five,  of  which  John  M.  Cole 
received  two  hundred  and  ninet}' ;  Calvin  R.  Taft  two  hundred 
and  eight3'-three,  and  William  E.  Johnson  ninety-two.  It  thus 
appearing  that  John  M.  Cole  had  received  a  plurality  of  the  votes, 
he  was  forthwith  declared  duly  elected  according  to  law. 

It  is  alleged,  however,  by  the  petitioner,  in  his  petition,  that 
thirteen  of  the  ballots  counted  by  the  selectmen  of  the  town  of 
Williamstown  (twelve  of  which  were  votes  for  John  M.  Cole,  and 
one  a  vote  for  Calvin  R,  Taft) ,  should  have  been  rejected  because 
of  their  illegalit}'  in  having  been  cast  in  unofficial  envelopes,  that 
is  to  say,  envelopes  not  bearing  the  emblematic  seal  of  the  Com- 
monwealth; and  that  if  the  aforesaid  thirteen  ballots  had  been 
rejected,  the  petitioner,  and  not  the  present  incumbent  of  the 
seat,  would  have  been  elected. 

The  fact  here  presented  by  the  petitioner  was  not  denied  by  Mr. 
Cole  ;  and  it  has  been  made  to  appear  beyond  doubt  bj'  the  testi- 
mony of  several  witnesses  before  the  Committee. 

The  whole  question,  therefore,  to  be  determined  in  the  present 
case,  is,  of  the  legal  admissibilit)^  of  the  thirteen  ballots  contained 
in  the  unofficial  envelopes  aforesaid,  to  be  counted  as  such  by  the 
selectmen.     If  the  selectmen  were  justified  b}-  law  in  counting  the 


.4i;  MASSAnilTSKTTS    ELECTION    t.V.sK.N  —  iN-ll-^-So. 

sai.l  ballots.  u,.n  uu  .sitting  member  ^vas  duly  elected,  and  is  law- 
f.illv  entitled  to  the  seat:  if  tbey  were  not  so  justified  by  law, 
tl.en  the  petitioner,  Calvin  R.  Taft,  having  received  a  plurality  of 
the  legal  votes,  was  duly  elected,  and  is  lawfully  entitled  to  the 

same. 

The  question  has  been  ably  argued  by  learned  counsel,  and  the 
.•ommiltee  have  given  to  it  that  careful  consideration  which  it  was 
entitled  to  receive.  Solicitous  that  the  will  of  the  people,  when 
legally  ascertained,  should  not  be  defeated  by  any  mere  techni- 
cality", or  error  of  form,  they  have  endeavored  to  construe  the  law 
applicable  to  the  present  case,  in  the  same  spirit  of  liberality,  by 
which  they  have  been  governed  in  the  cases  of  contested  elections 
which  have  preceded  it.  But  the  question  involved  has  been  one 
of  considerable  difficulty,  and  the  committee  have  experienced 
somi»what  of  eml)arrassment  in  its  decision. 

Were  the  V)allot3  contained  in  the  unofficial  envelopes  legal 
ballots,  and,  as  such,  entitled  to  be  counted  by  the  selectmen,  in 
ascertaining  the  result  of  the  election  ?  that  is  the  question. 

I'.y  reference  to  an  Act  of  the  legislature,  entitled  "  An  Act 
concerning  the  manner  of  voting,"  approved  March  2,  1853, 
(Act  of  isr»3,  chap.  36,)  the  following  pertinent  provision  of  law 
is  found,  namely  :  — 


It 


Sect.  2.  Self-sealing  envelopes  of  uniform  size  and  color, 
bearing  the  emblematic  seal  of  the  Commonwealth,  shall  be  fur- 
nished at  the  expense  of  the  State,  (as  heretofore,  in  accordance 
with  the  provisions  of  a  law  passed  in  the  year  1851,)  to  all  per- 
sons who  may  desire,  at  any  election  herein  before  specified,  to 
deposit  their  ballots  therein,  and  no  other  envelopes  shall  be  used 
at  the  polls.  "  * 

It  will  1)0  perceived  that  the  title  of  this  Act,  as  well  as  the 
t<'nor  of  the  section  above  quoted,  contemplates,  not  merely  the 
actH  of  the  officer  who  shall  preside  at  elections,  but  also  the  acts 
of  the  voters  themselves;  and  that,  after  providing  that  State 
envelopes  shall  be  furnished  to  such  persons  as  may  desire  them, 
it  propoeds,  in  express  terms,  to  say  that  "  no  other  envelopes  shall 
be  used  (U  the  polls.  " 

Your  committee  are  unable  to  regard  the  last  clause  of  this  sec- 
tion of  the  Act  of  1853  as  directory  merely  ;  it  is,  in  their  opinion, 
pi-reinpiory,  and  more  emphatically  so,  from  the  fact  that  it  is 
prohibitory  in    cxprossifyn    and   effect.     It   does   not   say  simply 

•  Substantially  the  same  as  Pub.  Stats,  eh.  7,  §  4, 


TAFt   V.    f'OLE.       lIOltSE,    1858.  47 

that  a  certain  thins;  shall  be  done;  but  it  declares  in  unequivocal 
terms,  that  a  certain  thing  shall  not  he  done.  The  language  of  the 
Act  is  not  to  the  effect  that  State  envelopes  shall  be  used  at  the 
polls,  in  which  case  it  might  perhaps  have  been  regarded  as 
directory  ;  but  it  is  to  the  effect  that  no  other  envelopes  shall  be  so 
used,  and,  therefore,  must  be  considered,  in  the  sense  of  prohibi- 
tion, as  peremptory. 

The  learned  counsel  for  the  sitting  member,  in  presenting  this 
pDint,  argued,  that  because  the  Act  of  1853  repealed  the  Act  of 
1851 ,  in  wiiich  there  was  express  provision  that  all  ballots  con- 
tained in  unofficial  envelopes  should  be  rejected,  and  because  no 
such  provision  was  re-enacted  in  the  Act  of  1853  itself,  that 
therefore  the  Act  of  1853  intended  to  legalize  such  ballots,  and 
justify  their  being  counted  by  the  officers  wdio  preside  at  the 
polls. 

Although  it  is  true,  what  the  argument  assumes,  that  no  pro- 
vision that  such  ballots  shall  be  rejected  is  contained  in  the  Act  of 
1853,  in  so  many  words,  yet,  your  committee  are  of  the  opinion 
that  there  is  less  doubt  in  determining  that  this  was  the  real  pur- 
pose of  the  Act,  intended  to  be  expressed  in  the  phrase  "  no  other 
envelopes  shall  be  used  at  the  polls,"  than  in  adopting  a  contrary 
conclusion,  b}-  reason  of  an  implied  meaning,  to  be  inferred,  upon 
a  construction  of  this  Act  in  connection  with  another  Act  which  it 
repeals.  The  words  of  the  Act  of  1851  are  undoubtedly  more 
explicit  upon  the  point  in  controversy,  than  are  the  words  emploj^ed 
in  the  Act  of  1853  ;  but  is  not  this  fact  suggestive  of  a  thought 
consonant  with  the  construction  given  to  the  latter  by  the  com- 
mittee? If  the  legislature  which  passed  the  Act  of  1853  had 
intended  to  change  the  pre-existing  provisions  of  law  upon  the 
subject,  and  admit  such  ballots  as  are  here  in  question,  to  be 
counted,  would  it  have  left  its  intention  in  so  important  a  matter 
to  be  ascertained  by  implication  only?  And  yet  the  argument 
amounts  to  this,  and.  asks  that  an  express  provision  of  law  shall 
be  entirely  disregarded,  in  order  that  a  questionable  implication  of 
law  ma}'  be  allowed  to  prevail.  This,  in  the  opinion  of  the  com- 
mittee, it  would  not  l)e  wise  and  proper  for  them  to  do. 

The  committee  are  confirmed  in  their  opinion  that  the  Act  of 
1853  cannot  be  considered  as  merely  directory,  bj*  still  another 
view  of  the  question. 

It  has  been  observed  that,  in  parenthesis,  in  the  section  of  that 
Act  above  quoted,  it  is  enacted,  that  State  envelopes  shall  be  fur- 
nished to  all  persons  who  may  desire  to  deposit  their  ballots 
therein,  "  in  accordance  with  the  provisions  of  a.  law  jyassed  in  the 
year  1851." 


48  MASSA('IIUSETT!=5   ELECTION    CASES  —  1853-1885. 

Bv  reioreuc-e   lo  the  Act  of   1851    (Act  of  1851,  chap.    226) 
we  fiiuJ  that,  in  so  far  as  it  relates  to  the  matter  in  hand,  it   reads 

"  Sk.  r.  1.  It  i^liall  be  the  duty  of  the  selectmen  of  each  town, 
and  the  wardens  and  inspectors  of  every  ward  in  each  city  within 
the  state,  to  obtain  from  the  clerks  of  their  several  towns  and 
cities,  and  provide  at  the  polls,  on  the  day  of  election,  a  sufficient 
•  luantity  of  the  envelopes  aforesaid,  and  to  appoint  two  or  more 
suitable  persons  to  take  charge  of  the  same,  and  supply  each  per- 
son ddiming  to  be  a  voter  in  the  said  town  or  city,  on  his  personal 
appHciUion.  and  no  others,  with  such  a  number  as  the  pending 
eleclion  may  require,  and  to  return  to  the  clerk  aforesaid  all  envel- 
opes not  used.  " 

Now,  bearing  in  mind  the  fact,  that  these  provisions  are  ingrafted 
in,  and  constitute  a  part  of  the  Act  of  1853,  the  committee  derive 
support  therefrom  in  aid  of  their  construction  of  that  Act ;  for,  in 
the  absence  of  proof  to  the  contrary,  it  is  to  be  presumed  that 
the  public  officers  performed  their  duty,  and  that  all  these  provis- 
ions of  law  were  complied  with  in  the  present  case.  And  in  this 
relation,  when  your  committee  reflect  upon  the  restrictive  terms 
of  this  enactment,  and  consider  how  carefull3^it  provides  as  to  the 
time  when,  place  where,  and  manner  in  which,  the  State  envel- 
opes are  to  be  supplied  to  the  voters  of  any  town  or  city, — 
limitini!;  the  number  thereof  to  such  number  as  the  pending  elec- 
tion may  require, —  the}'  are  satisfied  that  their  construction  of  the 
Act  of  1H53  is  a  correct  one,  and  that  the  unofficial  envelopes  in 
the  present  case  were  not  legal,  and  should  have  been  rejected  by 
the  selectmen. 

Upon  the  premises  of  undisputed  fact  in  the  case,  therefore,  and 
upon  the  legal  considerations  applicable  to  the  same,  which  have 
tlius  been  presented,  the  committee  are  unanimously  of  the  opin- 
ion that  John  M.  Cole  is  not  entitled  to  the  seat  in  the  House  of 
Representatives  now  occupied  by  him,  and  that  the  petilioner, 
Calvin  U.  Taft,  having  been  legally  elected  a  representative,  is 
entitled  U)  the  same. 

[The  report  of  the  committee  was  accepted,  H.  J.  1858,  p.  190. 
A  motion  was  made  to  reconsider,  and  negatived,  H.  J.  1858, 
p.   I'JC] 


LOTHROP,    PET.       HOUSE,    1858.  49 


Thornton  K.  Lothrop  et  als.,  Petitioners. 

House  Document,  No.  77.    March  1,  1858.     Report  by  Marcus  Morton, 

Jr.,  Chairman. 

Apportionment  of  iBepreseiitatives  in  Boston,  must  be  hj  Mayor  and  Aldermen. 
Under  the  21st  amendment  to  the  Constitution,  providing  that  after  the  apportionment 
of  representatives  to  the  county  ofSuflFolk,  the  Mayor  and  Aldermen  of  Boston  shall 
divide  the  county  into  representative  districts  so  as  to  apportion  the  representation 
assigned  to  the  county  equally,  as  nearly  as  may  be,  according  to  the  relative  num- 
ber of  legal  voters  in  the  several  districts,— the  duty  is  imposed  upon  the  Mayor  and 
Aldermen,  not  only  of  dividing  the  county  into  districts,  but  also  of  designating  the 
number  of  representatives,  not  exceeding  three,  to  which  each  district  is  entitled, 
and  their  action  in  such  apportionment  is  not  merely  ministerial,  but  judicial,  and 
cannot  be  revised  by  the  House  of  Representatives. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Thornton  K.  Lothrop  and  others  for  an  alteration  of  the  appor- 
tionment of  representatives  in  the  second  and  sixth  districts  of  the 
county  of  Suffolk  ;  also,  the  petition  of  E.  W.  Wellman  and  others, 
in  aid  of  the  same;  also,  the  petition  of  George  S.  Hillard  and 
others  in  aid  of  the  same,  submit  the  following  report :  The 
original  petition  in  this  case  is  as  follows:  "The  undersigned, 
legal  voters  of  the  sixth  representative  district  of  the  county  of 
Suffolk,  and  a  committee  appointed  by  the  legal  voters^  of  the 
said  district  in  this  behalf,  respectfully  represent  to  your  honorable 
body,  that  by  the  Constitution  and  laws  of  the  Commonwealth, 
the  said  district  is  entitled  to  elect  three  representatives  to  your 
honorable  body,  but  that  by  the  apportionment  of  representatives 
among  the  several  districts  of  the  said  county,  made  by  the  mayor 
and  aldermen  of  the  city  of  Boston,  in  the  month  of  August  now 
last  past,  only  two  representatives  were  assigned  to  said  district ; 
and  the  warrant,  calling  the  meeting  of  the  voters  in  said  district 
on  the  first  Tuesday  of  the  present 'month  of  November,  for  the 
election  of  representatives  therein,  directed  the  said  voters  to  bring 
in  their  votes  for  (only)  two  representatives,  as  the  number  to 
which  the  said  district  was  entitled  ;  by  reason  whereof  only  two 
representatiA^es  were  chosen  in  said  district  at  said  election.  And 
your  petitioners  further  state  that  the  second  representative  district 
in  said  county  of  Suffolk  is  by  the  Constitution  and  laws  of  this 
Commonwealth  entitled  to  elect  only  two  representatives  to  your 
honorable  body;  but  that  by  the  aforesaid  apportionment  three 
representatives  were  assigned  to  said  second  district,  and  that  the 


,10  At A^JSACnrSETTS   election   cases 1853-1885. 

warrant  calling  the  meeting  of  the  voters  in  said  second  district  for 
the  election  of  representatives  therein,  on  the  said  first  Tuesday  of 
November,  directed  the  said  voters  to  bring  in  their  votes  for  three 
representatives,  as  the  number  to  which  the  said  second  district 
was  by  law  entitled,  by  reason  whereof,  three  persons  were  chosen  as 
representiitives  to  your  honorable  body,  from  the  said  second  district ; 
whereas,  bv  law  and  by  right  the  said. second  district,  as  before 
sUted,  is  entitled  to  elect  qnly  two  representatives. 

''  Wherefore,  and  in  consideration  of  the  premises  your  petitioners 
pray  that  the  said  election  of  representatives  in  the  said  second 
district,  so  far  as  the  same  is  against  the  constitution  and  laws  of 
the  Commonwealth,  may  be  set  aside,  and  the  persons  chosen  as 
representatives  therein,  so  far  as  they,  or  any  of  them  were  not 
legally  chosen,  or  are  not  entitled  to  a  seat  in  your  honorable  body, 
may  be  declared  not  members  thereof,  and  that  a  precept  may  issue 
to  the  said  sixth  district  for  the  election  of  a  representative  to  your 
honorable  body,  in  addition  to  those  already  chosen  therefrom,  and 
for  such  other  and  further  relief  as  law  and  justice  may  require,  and 
to  your  honorable  bod}-  may  seem  meet." 

The  case  presented  by  the  petitioners  depends  entirely-  upon  the 
construction  to  be  given  to  the  twenty-first  article  of  amendment 
of  the  Constitution,  ratified  by  the  people  on  the  first  day  of  May, 
A.D.  1.S57. 

The  material  facts,  which  are  not  controverted,  are  as  fol- 
lows :  — 

The  legislature,  acting  under  the  provisions  of  the  said  twent}'- 
first  article  of  amendment,  passed  an  "  Act  to  apportion  represen- 
tatives to  the  several  counties,"  which  Act  was  approved  by  the 
governor  on  July  29,  1857.  By  this  Act," twenty-eight  represen- 
tatives were  apportioned  to  the  county  of  SuflEblk,  which  number 
was  duly  certified  by  the  secretary  of  the  Commonwealth  to  the 
mayor  and  aldermen  of  the  city  of  Boston,  the  board  authorized 
by  said  article  of  limendmeut,  to  divide  the  county  of  Suffolk  into 
representative  districts. 

On  the  first  Tuesday  of  August,  the  mayor  and  aldermen  pro- 
ceeded, according  to  the  provisions  of  the  said  article  of  amend- 
ment, to  divide  the  county  of  Sufi"olk  into  representative  districts 
for  the  choice  of  the  twenty-eight  representatives  so  apportioned 
to  the  said  county. 

It  may  be  stated  as  a  part  of  the  history  of  the  case,  though 
perhaps  not  material  to  its  correct  decision,  that  this  duty  was  not 
performed  by  the  mayor  and  aldermen  as  a  single  tribunal  with  the 
mayor  .sitting  as  a  member  thereof.  The  board  of  aldermen  had 
previously  appointed  a  committee  to  prepare  and  submit  a  plan  of 


LOTHROP,    PET.       HOUSE,    1S58. 


51 


apportionment ;  the  report  of  this  committee  was  presented  to  the 
board  of  aldermen  on  the  fourth  day  of  August,  and  on  the  same 
day,  after  some  amendments  by  them  accepted,  and  an  order  dividing 
the  county  into  thirteen  districts,  passed  and  sent  to  the  mayor 
for  his  approval.  On  the  tenth  day  of  August  the  mayor  returned 
the  said  order,  with  his  objections,  and  the  board  of  aldermen 
thereupon  passed  it,  notwithstanding  the  said  objections,  by  a  two- 
thirds  vote.  By  this  apportionment  each  of  the  twelve  wards  of 
the  citj'  of  Boston  was  made  one  district,  the  numbers  of  the  dis- 
tricts corresponding  with  the  numbers  of  the  wai'ds,  and  the  city 
of  Chelsea  and  the  towns  of  North  Chelsea  and  Winthrop,  composed 
the  thirteenth  district. 

The  several  districts,  thus  constituted,  appear  in  the  following 
table :  — 


Legal  Voters. 

Number  of 
Representatives. 

District  No.  I., 

1,709 

2 

n.,     : 

1,916 

3 

III., 

1,755 

2 

IV., 

1,961 

2 

v., 

1,907 

2 

VI., 

2,392 

2 

VII., 

1,573 

2 

VIII., 

1,828 

2 

IX., 

1,445 

2 

X., 

1,766 

2 

XL, 

2,020 

2 

XII., 

2,406 

3 

XIII., 

2,067 

2 

It  will  be  seen  by  the  above  table,  that  the  mayor  and  aldermen 
assigned  to  the  second  district,  containing  1,916  legal  voters,  ac- 
cording to  the  enumeration  taken  by  the  census  of  the  State,  three 
representatives,  while  the}-  assigned  to  the  sixth  district,  contain- 
2,392  legal  voters,  only  two  representatives. 

The  reasons  for  this  apparent  inequalit}-  were  stated  by  the  com- 
mittee of  the  board  of  aldermen,  who  reported  the  plan  of  appor- 
tionment to  be,  that  there  are  large  areas  of  unoccupied  land  in  the 
second  district,  and  that  therefore  a  large  increase  of  population 
might  be  expected,  while  in  the  sixth  district  the  land  is  now  so 
covered  with  dwelling-houses,  that  there  is  little  room  for  expan- 
sion, and  the  future  increase  af  legal  voters  must  be  comparatively 
small. 

It  was  also  testified  before  j'our  committee,  by  a  member  of  the 
board  of  aldermen  who  made  the  apportionment,  that  their  action 


52 


M  v^-^vrnrsKTT.s  election  cases 1853-1885. 


was  influenced  by  a  supposed  error  on  the  part  of  the  State  censors 
in  taking  the  enumeration  in  the  city  of  Boston.  The  assessors  of 
the  city^'of  Boston  annually  take  a  census  of  the  legal  voters  in 
each  ward,  on  the  first  day  of  May,  for  the  purpose  of  making  up 
the  voting  hsts ;  and  it  appeared  in  evidence,  that  the  number  of 
legal  voters,  as  determined  by  the  assessors  on  the  first  day  of  May, 
A.  D.  1857,  was  as  follows  :  — 


Legal  Voters. 

Legal  Voters. 

Ward  No.  1.,     . 

2,026 

Ward  No.  VII.,       . 

1,421 

II.,     . 

2,445 

VIII.,       . 

1,729 

III.,     . 

1,858 

IX.,       . 

1,681    ■ 

IV.,     . 

1,700 

X.,       . 

2,028 

v.,    . 

2,092 

XL,       . 

2,808 

VI..     . 

2,1  :^-' 

XII.,       . 

2,409 

Your  committee  are  not  furnished  with  the  means  of  explaining 
the  great  difference  between  these  two  returns,  each  purporting  tc 
be  an  enumeration  of  the  legal  voters  in  the  city  of  Boston  on  the 
same  first  day  of  May.  It  should  be  stated  that  the  enumeration 
by  the  assessors  had  not  been  completed  and  returned  at  the  time 
when  the  board  of  aldermen  made  their  apportionment,  but  the 
witness  testified  that  enough  was  known  of  the  result  to  lead  to  the 
belief  that  great  errors  had  been  committed  by  the  State  censors. 

In  the  view  which  the  committee  take  of  the  question  which 
underlies  this  whole  case,  perhaps  much  of  the  above  testimony 
was  not  properl}'  admissible.  As  the  committee  have  come  to  the 
conclusion  that  the  mayor  and  aldermen  of  the  city  of  Boston,  and 
the  county  commissioners  of  other  counties  than  Suffolk,  were 
made  by  the  twenty-first  article  of  amendment  a  constitutional 
tribunal,  upon  whom  was  devolved  the  duty,  in  the  exercise  of  their 
Judicial  discretion,  of  dividing  their  several  counties  into  represent- 
ative districts,  and  of  apportioning  among  such  districts  the  repre- 
sentation assigned  to  each  county,  it  is  probably  not  competent  for 
the  house  or  its  committee  to  inquire  into  the  motives  or  reasons 
which  controlled  the  exercise  gf  that  discretion,  but  your  commit- 
tee have  deemed  it  proper  to  report  all  the  facts  for  the  considera-" 
lion  of  the  house. 

Under  this  state  of  facts,  the  petitioners  claim  that  the  action 
of  the  mayor  and  aldermen  was  erroneous  and  unconstitu- 
tional, and  ought  to  be  revised  and  annulled  by  this  house, 
under  the  provisions  of  the  Constitution  which  makes  the  house 


LOTHROP,    PET.       HOUSE,    1858.  53 

representatives  the  "judge  of  the   returns,  elections  and  (qualifi- 
cations of  its  own  members,  as  pointed  out  in  the  Constitution.' 

They  base  their  claim  upon  two  distinct  grounds.  First,  they 
argued  that  the  mayor  and  aldermen  had  no  authority,  under  the 
twent3'-first  article  of  amendment,  to  assign  and  designate  the 
number  of  representatives  to  which  each  district  in  the  county,  as 
created  by  them,  was  entitled ;  that  the  onl}^  duty  imposed  upon 
them  and  the  only  power  conferred  upon  them,  was  to  divide  the 
county  into  representative  districts,  to  number  the  districts,  and 
to  return  a  "  description  of  each,  with  the  numbers  thereof,  and 
the  number  of  legal  voters  therein, "  to  the  secretary  of  the  Com- 
monwealth, the  county  treasurer  and  the  clerk  of  each  town  in 
each  district ;  that  the  number  of  representatives  to  which  each 
district  is  entitled  is  to  be  determined  by  the  State  enumeration, 
and  that  the  officers  who  are  charged  with  the  duty  of  issuing  the 
warrants  for  the  meetings  of  the  voters,  are  to  judge,  in  the  first 
instance,  as  to  the  number  of  representatives,  to  which  their  dis- 
trict is  entitled  according  to  the  said  enumeration,  subject  to  the 
final  revision  of  the  house. 

But  the  committee  are  unable  to  concur  in  this  view. 

Taking  into  view  the  whole  scope  and  purpose  of  the  article  of 
amendment,  it  seems  ver}-  clear  that  it  was  designed  to  impose 
upon  the  mayor  and  aldermen  and  the  county  commissioners  the 
duty,  not  only  of  dividing  the  several  counties  into  territorial  dis- 
tricts, but  also  of  apportioning  among  such  districts  the  repre- 
sentation assigned  to  each  county.  The  designation  of  the  number 
of  representatives  to  which  the  several  districts  are  entitled  is  a 
necessary  element  in  the  division.  No  other  board  or  officer  is 
clothed  with  that  power.  In  the  country  counties,  where  several 
towns  are  united  to  form  one  district,  such  district  has  no  officers 
or  agents  who  can  designate  to  each  town  the  number  which  shall 
be  specified  in  the  warrants  as  the  number  of  representatives  for 
which  the  voters  are  to  bring  in  their  ballots,  and  unless  this 
power  be  lodged  with  the  board  of  commissioners  who  create  the 
district,  the  officers  of  each  town  must  judge,  at  their  own  peril, 
of  the  number  to  be  voted  for,  and  great  confusion  might  ensue. 
It  ma}-  be  observed,  too,  in  this  connection,  that  since  the  twelfth 
article  of  amendment  was  adopted^in  1836,  when  the  first  germ  ot 
the  district  system  of  representation  appeared  in  our  Constitution, 
the  uniform  polic}^  of  the  State  has  been  to  provide  for  some 
central  board  whose  duty  it  has  been  to  apportion  the  represen- 
tation among  the  several  districts  and  towns. 

It  seems  also  to  the  committee  that  a  fair  construction  of  the 
language  of  the  article  of  amendment  leads  to  the   same  result. 


54  massac;hu^kii>  ki.ection  cases  — is;;:^-irs5. 

The  article  provides  that  the  mayor  and  aldermen,  or  the  county 
commissiuDers,  shall  divide  the  county  -into  representative  dis- 
irict*  of  contiguous  territory,  so  as  to  apportion  the  representa- 
tion assigned  to  each  county,  equally  as  nearly  as  may  be, 
according  to  the  relative  number  of  legal  voters  in  the  several 
districts^'of  each  county."  The  expression  "  so  as  to  apportion," 
implies  an  active  duty  to  be  performed  by  some  one,  and  no  offi- 
cers except  the  mayor  and  aldermen  or  the  county  commissioners 
arc  mentioned,  or  can  be  intended,  as  charged  with  that  duty. 
The  petitioners  contended  that  "  the  enumeration  aforesaid"  is  to 
apportion  the  representatives ;  but  an  enumeration  cannot  appor- 
tion, it  can  only  determine  the  rule  by  which  an  apportionment 
shall  be  made. 

It  may  be  proper  to  add,  that  this  clause  has  received  a  legis- 
lative construction  in  the  Act  of  1857,  chapter  311,  section  8, 
which  iirovides  that  "  it  shall  be  the  duty  of  the  county  commis- 
sioners, mayor  and  aldermen,  or  board  of  aldermen,  or  such  special 
commissioners  as  are  by  law  authorized  to  apportion  the  represen- 
tation assigned  to  the  several  counties  "  to  appoint  a  place  for  the 
meeting  of  the  clerks  to  ascertain  the  result  of  the  election. 

The  committee,  for  these  reasons,  are  of  the  opinion  that  the 
twenty-first  article  of  amendment  imposes  upon  the  mayor  and 
aldermen  the  duty,  not  only  of  dividing  the  county  into  terri- 
torial districts,  but  also,  as  a  necessary  part  of  that  division,  of 
designating  the  number  of  representatives  to  which  the  districts 
are  entitled,  and  that  therefore,  in  so  doing,  they  did  not  exceed 
their  powers.  The  committee  are  strengthened  in  their  opinion, 
by  the  fact,  that  every  board  of  county  commissioners  in  the  Com- 
monwealth took  the  same  view  of  their  duty  in  this  respect. 

Second.  The  petitioners  contended,  that,  if  it  was  a  part  of 
the  duty  of  the  mayor  and  aldermen  to  apportion  the  repre- 
sentation among  the  several  districts  created  by  them,  this  was 
merely  a  ministerial  duty ;  that  in  the  performance  of  such 
duty  they  had  no  judicial  functions  to  exercise,  but  were  merely 
oompuling  agents,  receiving  certain  elements  which  they  were 
to  combine,  and  by  a  mathematical  calculation  make  certain 
find  declare  the  result,  and  that  if  they  committed  any  error  or 
miHtake,  the  house  had  the  right  to  go  behind  and  revise  their 
proceedings. 

Without  di.scussing  the  question  whether,  where  a  board  of  offi- 
cers is  created  by  the  Constitution,  and  by  it  clothed  with  certain 
duties  merely  ministerial,  any  other  tribunal,  except  the  supreme 
judicial  court,  can  control  such  board  in  the  exercise  of  its  powers, 
and  revise  its  proceedings,  the  committee  are  of  the  opinion  that 


LOTHROP,  PET.       HOUSE,   1858.  55 

the  powers  conferred  upon  the  mayor  and  aldermen  and  the  county 
commissioners  by  the  twenty-first  article  of  amendment  are  judicial 
in  their  nature,  involving  in  a  high  degree  the  exercise  of  discretion 
and  judgment  on  their  part.  They  are  "  to  assemble  at  a  shire 
town  of  their  respective  counties,  and  proceed,  as  soon  as  may  be, 
to  divide  the  same  into  representative  districts  of  contiguous  terri- 
tory, so  as  to  apportion  the  representation  assigned  to  each  county 
equally,  as  nearly  as  may  be,  according  to  the  relative  number  of 
legal  voters  in  the  several  districts  of  each  county  ;  and  such  dis- 
tricts shall  be  so  formed  that  no  town  or  ward  of  a  city  shall  be 
divided  therefor,  nor  shall  any  district  be  made  which  shall  be 
entitled  to  more  than  tin-ee  representatives."  No  argument  is 
needed  to  show  that  tlie  mayor  and  aldermen  and  county  commis- 
sioners are  by  this  provision  invested  with  discretionary  powers  to 
a  great  extent.  They  are  to  perform  a  difficult,  and  in  many  cases 
a  most  perplexing  duty,  involving  many  considerations,  capable  of 
being  performed  in  many  different  ways,  each  leading  to  a  different 
result,  and  only  to  be  performed  by  the  exercise  of  a  sound  judicial 
discretion.  It  is  probably  not  too  much  to  say,  that  no  two  boards, 
acting  at  the  same  time  and  independently  of  each  other,  would 
arrive  at  precisely  the  same  result.  Yet  if  the  act  to  be  performed 
is  merely  ministerial,  the  result  of  a  pure  mathematical  calculation, 
it  would  be  impossible  for  them  to  arrive  at  different  results.  It 
was  argued  by  the  petitioners  that  the  duty  to  be  performed  by  the 
commissioners  might  be  divided  ;  that  while  the  division  of  the 
county  into  districts  was  within  their  discretion,  the  apportionment 
of  representatives  among  such  districts  was  ministerial.  But  the 
committee  have  already  expressed  the  opinion  that  the  designation 
of  the  number  of  representatives  to  which  the  districts  are  severally 
entitled,  is  a  necessary  part  of  the  creation  of  the  districts,  and  to 
change  this  number  would  change  the  inherent  qualities  and  nature 
of  the  district. 

It  seems  to  the  committee  that  the  design  of  the  article  of 
amendment  under  consideration  was  to  provide,  that  at  the  com- 
mencement of  each  decennial  period,  the  State  should  be  divided 
into  districts  and  the  two  hundred  and  forty  members  of  the  house 
of  representatives  apportioned  among  such  districts,  that  such 
division  and  apportionment  should  remain  fixed  and  unalterable 
during  such  decennial  period,  and  that  the  duty  of  making  such 
permanent  division  and  apportionment  should  be  intrusted  to  the 
discretion  of  the  mayor  and  aldermen  of  the  city  of  Boston  and  the 
county  commissioners  of  other  counties  than  Suffolk,  or  such  board 
of  special  commissioners  as  might  be  provided  by  law. 

No  power  is  reserved  to  any  other  tribunal  to  make  any  new 


:»(;  MASSACIirSETTS    ELECTION    CASES 1853-1885. 

division  or  apportionment,  and  it  would  seem  that  no  other  tribu- 
nal can  do  so  without  usurping  powers  not  conferred  upon  it  by  the 
Constitution.  If  this  house  may  make  any  change  in  the  division 
and  apportionment,  upon  the  same  principles,  every  house  during 
tlie  decennial  period  may  do  the  same,  and  thus  the  distribution  of 
representatives,  instead  of  being  fixed  and  permanent,  would  be 
lliiftuatiug  and  uncertain,  and  the  manifest  design  of  the  Consti- 
tution be  contravened. 

The  power  under  which  the  house  is  called  upon  to  act  is  not  an 
unlimited  power ;  the  constitutional  provision  which  confers  this 
I>ower  is  as  follows:  "The  house  of  representatives  shall  be  the 
judge  of  the  returns,  elections  and  qualifications  of  its  own  mem- 
Ikts,  as  piiinled  out  in  the  Constitution."  If  the  Constitution  pro- 
vides that  another  tribunal,  created  or  designated  by  itself,  shall 
divide  the  State  into  districts,  and  apportion  representatives  to 
such  districts,  the  house  is  as  much  bound  by  such  provision,  as  it 
is  by  the  provision  requiring  that  a  plurality  of  votes  shall  elect,  or 
tlie  provisions  as  to  age,  residence,  or  other  qualifications. 

The  conmiittce  have  considered  the  subject  with  great  care,  and 
anxious  desire  to  arrive  at  a  correct  result,  and  they  have  been 
constrained  to  come  to  the  conclusion  that  it  is  not  competent  for 
the  house  to  revise  and  annul  the  proceedings  of  the  mayor  and 
aldermen,  according  to  the  prayer  of  the  petition,  and  they  there- 
fore rci)ort  that  the  petitioners  have  leave  to  withdraw. 

[Upon  the  presentation  of  the  report,  the  house  requested  the 
opinidu  of  the  justices  of  the  supreme  judicial  court  upon  the 
«luestion  raised  by  the  petition,  and  they  submitted  an  opinion 
adirmiiig  the  views  of  the  committee.  {Opinion  of  Justices,  10 
(Iruy,  (;i3,  post.)  The  report  of  the  committee  was  accepted. 
11.  .1.,  1«58,  p.  4G3.] 


NEWCOMB   V.  HOLMES.       HOUSE,  1859.  57 


HOUSE  — COMMITTEE     ON     ELECTIONS,     1859. 

Messrs.  Nathaniel  Hinckley  of  Barnstable,  Chairman;  Otis  A.  Sea- 
mans  of  Springfield,  Augustus  L.  West  of  New  Bedford,  Alanson 
BiGELOW  of  Cambridge,  Stephen  N.  Stockwell  of  Boston,  Nathan 
B.  Edwakds  of  Chelmsford,  and  Gustavus  Attwill  of  Lynn. 


Alexander   Newcomb  v.  Joseph  Whelden  Holmes. 

House  Document,  No.  1.     January  15, 1859.     Report  by  Nathaniel  Hinck- 

LEy,    Chairman. 

Irregularity.  Failure  of  Selectmen  to  post  Voting  List  before  Election.  The  fact 
that  the  selectmen  of  a  town  failed  to  post  a  list  of  voters  prior  to  an  election  as 
provided  by  law,  in  the  absence  of  evidence,  that  such  failure  was  the  occasion  of 
the  refusal  of  the  vote  of  any  person  who  had  the  right  to  vote,  of  any  illegal  voting, 
or  any  other  oppressive  result,  will  not  invalidate  the  election. 

Same.  Failure  to  seal  up  Transcript.  The  fact  that  the  selectmen  of  a  town 
failed  to  seal  up  the  transcript  of  the  record  of  the  votes  cast  at  an  election,  it  being 
admitted  that  the  votes  were  duly  received,  assorted,  counted  and  declaration  thereof 
made  in  open'town  meeting,  will  not  invalidate  an  election. 

Same.  Unauthorized  Alteration  of  Transcript  by  Toton  Clerk  to  make  it  conform 
to  Truth.  Where  the  ballots  were  cast  and  counted  for  J.  W.  Holmes,  the  name  of 
one  of  the  candidates  for  representative,  and  the  town  clerk  ignorantly  supposing 
the  name  to  be  John  instead  of  Joseph,  entered  it  so  upon  the  record  or  upon  the 
transcript  thereof,  and  when  upon  the  way  to  meet  the  clerks  of  the  other  towns  in 
the  district,  on  the  day  following  the  election,  opened  the  said  transcript  and  erased 
the  letters  ohn  from  the  word  John,  leaving  J,  conformable  to  the  balloting  and 
declaration,  it  was  held,  that  while  such  conduct  was  unjustifiable,  it  should  not 
invalidate  the  vote  of  the  town 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Alexander  Newcomb  of  Tisbury,  praying  that  he  may  be  allowed 
a  seat  in  this  house  as  a  representative  from  district  number  one, 
in  the  county  of  Dukes  County,  in  the  place  of  Joseph  AVheldon 
Holmes  of  Tisbury,  the  sitting  member,  report :  Said  district  is 
composed  of  the  towns  of  Chilmark,  Edgartown  and  Tisbury,  in 
said  county,  and  is  entitled  to  one  representative. 

The  parties  in  this  case  were  content  to  submit  it  to  the  decision 
of  the  committee,  without  summoning  witnesses,  and  upon  a  state- 
ment of  facts  agreed  to  by  each,  and  the  conclusion  of  your  com- 
mittee is  based  upon  the  facts  thus  agreed  upon. 

The  vote  for  the  respective  parties,  as  agreed  to  by  them,  was  as 
follows  : — 

Chilmark, Holmes,  18  ;  Newcomb,  20. 

Edgartown, "Ill;  "         51. 

Tisbury, "         62;  "         95. 


58  MASSACnUSETTS   ELECTION   CASES  —  1853-1885. 

The  first  alle<^ation  contained  in  the  petition  is  "  that  the  statute 
of  this  State  wliich  requires  that  a  list  of  the  qualified  voters  be 
posted  prior  to  any  election,  was  not  complied  with  by  the  select- 
men of  Ed-artown  in  said  district,  at  the  election  in  November 
last."  This  allegation  was  admitted  by  the  sitting  member.  Your 
committee  are  of  opinion  that  this  omission  on  the  part  of  the 
selectmen  should  not  invalidate  the  election.  The  failure  of  town 
olficers  to  comply  with  the  requisitions  of  law  may  render  them 
lial)le  to  its  penalties,  but  should  not  operate  to  prevent  a  recog- 
nition of  the  will  of  the  people,  which  is  the  basis  of  our  institutions, 
if  that  will  can  be  clearly  and  satisfactorily  ascertained.  These 
views  are  in  conformity  to  reports  heretofore  made  and  sustained 
by  the  house  of  representatives.  See  Massachusetts  Election 
Cases  (Cushing,  S.  and  J.),  Fryehuryh,  page  41,  and  Maiden, 
page  213.* 

The  petitioner  further  represents,  "  that  the  transcript  or  copy 
of  the  record  of  said  town  was  given  to  the  clerk  unsealed,  con- 
trary to  the  5th  section  of  chapter  311  of  the  Acts  of  1857."  This 
allegation  was  admitted  by  the  sitting  member.  But  it  was  also 
adiiiitlc-d  by  the  petitioner,  that  the  votes  were  duly  received,  assort- 
ed, counted,  and  declaration  thereof  made  in  open  town  meeting. 
Under  this  admission  it  is  contended,  that  the  vote  of  said  town  was 
fairly  and  legally  expressed,  and  that  the  failure  of  the  officers  to 
seal  up  said  transcript  or  copy,  being  a  subsequent  ac^,  should  not 
operate  to  the  exclusion  of  the  vote  of  said  town  thus  expressed. 
To  make  an  election  depend  upon  the  accuracy  of  a  return  thereof 
would  be  to  place  it  in  the  power  of  ignorant  or  designing  returning 
officers  to  subvert  the  will  of  the  people,  whose  servants. they  are. 
These  views  are  more  fully  set  forth  in  a  report  on  the  case  of 
Lysuuder  Johnson  v.  Lansing  J.  Cole,  which  was  sustained  by 
the  house  of  representatives  in  1858,  ante,  p.  36. 

The  third  and  last  allegation,  and  the  one  most  relied  upon  by 
tile  petitioner,  sets  forth,  '•  that  on  the  next  day  [after  the  election], 
when  on  his  journey  to  Chilmark,  the  place  appointed  for  the  meet- 
ing of  the  clerks  of  the  several  towns  in  said  district,  the  town  clerk 
of  said  Ivdgartown  opened  the  said  transcript  of  the  votes  of  said 
EtJgartown,  and  materially  altered,  or  caused  to  be  altered,  the 
iiimn- ;  in  conseqQence  of  which  said  alteration,  the  clerks  of  the 
Heveral  towns  in  the  said  district  gave  the  certificate  of  election  to 
.loKcpli  Wlirldeu  Holmes;  whereas,  but  for  said  alteration  of  the 

•  (Nori:  iiY  Till:  Euitous.  — The  position  assumed  by  the  committee  in  refusing  to 
Invalidutc  the  elcclion,  on  account  of  irregularities  in  posting  list  of  voters,  or  giving 
notice  of  the  election,  is  fully  sustained  by  the  supreme  judicial  court  in  the  case 
of  CommonweaUh  v  Umith,  132  Mass.  289,  reported  in  the  supplement  hereto.] 


NEWOOMB    V.    HOLMES.       HOUSE,    1859.  59 

transcript  of  the  votes  given  by  the  inhabitants  of  Pxlgartown,  made 
b3'  the  town  clerk  thereof,  and  without  the  knowledge  of  the  select- 
men of  said  town,  and  after  the  meeting  had  been  dissolved,  your 
petitioner,  as  he  believes,  would  have  been  entitled,  to  and  have 
received  the  certificate  of  election." 

This  allegation  was  also  admitted  by  the  sitting  member. 

Jt  seems  proper  here  to  state  that  the  petitioner  disclaimed 
imputing,  either  to  the  selectmen  or  town  clerk,  any  fraudulent 
intent,  but  relied  solely  upon  the  legal  effect  of  the  informalities 
set  forth  and  admitted. 

A  brief  explanation  relative  to  the  third  allegation  will  serve  to 
show  the  grounds  upon  which  the  committee  come  to  their  conclu- 
sion. 

The  sitting  member,  as  stated  by  himself,  and  not  denied  by  the 
petitioner,  usually  writes  his  name  J.  Whelden  Holmes,  sometimes 
J.  W.  Holmes,  but  never  Joseph  Whelden  Holmes. 

It  was  also  stated  and  admitted  that  the  father  of  said  sitting 
member  is  John  Holmes,  who  has  a  son  John  Holmes,  Jr.,  and  a 
son  Charles,  and  that  these  are  all  the  voters  resident  in  the  said 
district  bearing  the  name  of  Holmes,  and  consequently  that  there 
is  no  other  person  bearing  the  name  of  the  sitting  member,  in  either 
of  its  forms,  resident  in  said  district. 

It  was  further  stated  and  admitted,  that  the  votes  were  given  in 
for  J.  W.  Holmes,  and  that  the  declaration  thereof,  hereinbefore 
referred  to,  was  made  for  J.  W.  Holmes.  In  confirmation  of  this 
position  a  printed  ballot  was  produced  before  the  committee, 
which  was  admitted  by  the  petitioner  to  have  been  used  at  the 
election,  bearing  the  names  of  candidates  for  all  the  State  and 
district  officers  voted  for  in  that  election,  and  thereon  was  printed, 
"  For  Representalive,  District  No.  1,  J.  W.  Holmes,  of  Tisbury" 

The  theory  concurred  in  by  the  parties  in  relation  to  the  altera- 
tion of  the  transcript  referred  to  is,  that  the  town  clerk,  ignorantly 
supposing  the  name  of  the  sitting  member  to  be  John  instead  of 
Joseph^  entered  it  thus  upon  his  record,  or  upon  the  transcript 
thereof,  and  the  only  change  alleged  is  that  the  lettq;-s  ohn  were 
erased,  leaving  the  initial  /conformable  to  the  balloting  and  declar- 
ation. The  falsity  of  the  record  thus  made  was  unjustifiable,  but 
the  correction  thereof,  when  the  error  was  discovered,  displays  an 
honest  intent,  and  in  part  atones  for  the  error  first  made. 

It  is  proper  to  add,  in  relation  to  the  first  allegation,  that  the 
petitioner  admitted  that  the  failure  of  the  selectmen  to  comply  with 
the  provisions  of  law  relative  to  posting  up  a  list  of  voters,  was 
not  the  occasion  of  the  refusal  of  any  person's  vote  who  had  a  right 
to  vote,  of  any  illegal  voting,  or  of  any  other  oppressive  result. 


60  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

The  issue  in  this  case  seems  mainly  narrowed  down  to  the  ques- 
tion _  -  Shall  the  doings  of  the  town  clerk,  in  being  wise  above 
what  was  written  on  the  ballot  and  declared,  or  in  writing  what 
was  unwise  and  unauthorized  on  his  record,  have  the  effect  to  dis- 
franchise the  voters  of  Edgartown?"  Your  committee  are  of 
opinion  that  it  should  not  be  so,  and  that  the  sitting  member  is 

tMititled  to  his  seat. 
They  therefore  recommend  that  the  petitioner  have  leave   to 

withdraw. 

[The  report  of  the  committee  was  accepted.     H.  J.,  1859,  p.  83.] 


Job  T.  Tobey  v.  Theophilus  King. 

ll.iuse  Uocuineut,  No.  8.    January  20, 1859,    Report  by  Nathaniel  Hinck- 
ley, Chairman. 

Irregularities  in  Warrant  for  Mectini/.  Omission  in  the  warrant  for  the  town 
niectinj;  for  the  election,  to  state  the  time  when  the  polls  would  be  opened,  or 
whether  persons  to  be  voted  for  should  be  voted  for  on  one  ballot,  or  at  the  same 
time  on  separate  ballots,  will  not  affect  the  validity  of  the  election. 

Fatbtre  to  make  Transcript  of  Record  of  the  Vote  at  Time  required.  Where  the 
Belectmen  and  town  clerk  of  Mattapoisett  omitted  to  make  and  seal  up  in  open  town 
mcetint;,  a  transcript  of  the  record  of  the  result  of  the  election,  so  that  at  the  meeting 
of  town  clerks  of  the  district  on  the  next  day  after  the  election,  there  was  no 
evidence  of  the  vote  of  the  town,  except  a  sheet  upon  which  the  result  had  been 
entered  i)rior  to  entry  on  the  records,  and  from  which  the  result  had  been  declaimed ; 
and  proiKjrly  deeming  this  too  informal  and  insufficient  evidence  of  the  result,  the 
dorks  adjourned  until  the  next  day,  at  which  adjourned  meeting  the  clerk  of  Matta- 
l)oi(>ett  presented  a  transcript  of  the  record  in  the  form  required  by  statute,  except 
that  it  iKjre  date  on  that  day,  being  the  second  day  after  the  election.  It  was  held, 
in  the  absence  of  proof  of  fraud  or  incorrectness  in  the  record,  that  such  transcript, 
although  it  had  not  liecn  sealed  up  in  open  town  mee't'ing,  as  required  by  law, 
-houl<i  have  l^een  received  and  acted  upon  by  the  clerks. 

Fnilure  of  CU-rks  to  meet  to  examine  aiul  compare  Transcripts  at  the  place  desig- 
nated by  Ihr  County  Commissioners.  Failure  of  the  town  clerks  to  meet  to  examine 
and  roinjiare  transcripts,  at  the  place  designated  by  the  county  commissioners,  as 
re<|ulred  by  statute,  is  unjustifiable,  but  where  there  is  no  pretence  that  such  failure 
affected  the  declared  result  of  the  election,  the  return  will  be  regarded  as  valid. 

Tlie  Committee  on  Elections,  to  whom  was  referred  the  petition 
i>\'  .lob  T.  Tobey,  of  Lakoville,  praying  that  he  may  be  allowed  a 
seat  in  this  house  as  representative  from  the  eighth  representa- 
tive district,  in  the    county  of  Plymouth,  instead  of  Theophilus 


TOBEY   V.    KING.       HOUSE,    1859.  61 

King,  of  Rochester,  the  sitting  member,  report :  Said  district  is 
composed  of  the  towns  of  Lakeville,  Mattapoisett,  and  Rochester, 
in  said  county,  and  is  entitled  to  one  representative. 

The  petitioner  represents,  that  he  was  legally  chosen  a  repre- 
sentative for  said  district,  on  the  second  day  of  November  now 
last  passed,  and  "  that  the  several  town  clerks  of  said  towns,  at 
their  meetings  duly  held  for  the  purpose  of  ascertaining  what  per- 
son had  been  legally  chosen  representative  for  said  district,  and 
giving  such  person  a  certificate  thereof,  rejected  the  votes  of  the 
town  of  Mattapoisett  because  they  were  not  returned  according  to 
law,  and  declared  Theophilus  King,  of  said  Rochester,  elected  rep- 
resentative for  said  district,  and  gave  him  a  certificate  thereof, 
although  said  King  did  not  receive  so  man}'  votes  in  said  towns  as 
your  petitioner,  that  is  to  say,  in  said  three  towns." 

It  appeared,  from  satisfactory  evidence,  that  no  person  was 
voted  for  as  representative  from  said  district  other  than  the  parties 
in  this  case,  and  that  the  entire  vote- was  as  follows  :  — 

Lakeville,  Job  T.  Tobey,  .  136  Theophilus  King,  .  .  .105 
Mattapoisett,  "         "  .     132  "  "...      48 

Rochester,       "        "  .      30  «  "...      89 


298  242 

From  these  figures,  it  appears  that  Mr.  Tobey  received  56  more' 
votes  than  Mr.  King.     Reject  the  vote  of  Mattapoisett  and  Mr. 
King  has  28  more  votes  than  Mr.  Tobey.     It  becomes,  then,  an 
important  inquiry,  whether  the  vote   of  Mattapoisett  should  or 
should  not  have  been  rejected. 

The  facts  in  the  case,  as  gathered  mainly  from  the  testimony  of 
Thomas  Nelson,  the  town  clerk  of  Mattapoisett,  who  was  sum- 
moned to  appear  before  the  committee,  are  as  follows  :  — 

The  town  meeting  was  duly  notified  and  warned,  and  the  votes 
were  dul}'  received,  assorted,  counted,  declared,  and  record  thereof 
made  in  open  town  meeting,  except  that  the  warrant  for  the  meet- 
ing did  not  state  the  time  when  the  polls  would  be  opened.  Your 
committee  do  not  deem  this  a  valid  or  fatal  objection.  Were  it 
made  so  it  would  not  only  be  fatal  for  Mattapoisett,  but  also  for 
Rochester,  as  the  warrant  calling  the  meeting  in  that  town  con- 
tained the  same  omission,  together  with  an  omission  of  stating 
whether  all  the  persons  to  be  voted  for,  should  be  voted  for  on  one 
ballot,  or  at  the  same  time  on  separate  ballots.  There  is,  then, 
in  the  opinion  of  your  committee,  no  valid  objection  to  the  pro- 
ceedings of  Mattapoisett  up  to  the  time  when  the  votes  had  been 
duly  declared  and  recorded. 


H2  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

The  first  important  failure  to  comply]witli  tlie  requisitions  of  law, 
wa?  an  omission  on  the  part  of  the  selectmen  and  town  clerk,  to 
•'  forthwith,  make  out  under  their  hands,  and  seal  up,  in  open  town 
ineetiuo;.  a  true  transcript  of  the  record  of  such  result,  and  deliver 
the  same  to  the  town  clerk,"  as  required  by  the  fifth  section  of 
chapter  oil,  of  the  Acts  of  1857.*  In  consequence  of  this  omis- 
sion, the  town  clerk,  when  he  met  the  town  clerks  of  Lakeville  and 
liochestcr,  on  the  next  day  after  the  election,  for  the  purpose  of 
ascertjiining  what  person,  if  any,  had  been  elected  representative, 
liad  no  evidence  of  the  vote  cast  in  his  town,  except  a  neatly 
prepared  sheet,  of  large  size,  on  which  the  result  of  the  balloting 
had  l)een  entered  prior  to  the  entry  on  the  book  of  record,  and 
from  which  the  result  had  been  publicly  declared. 

The  town  clerks,  at  their  said  meeting,  as  the  committee  think, 
very  properly  deemed  this  sheet  or  memorandum  as  quite  too 
informal,  and  as  insufficient  evidence  of  the  declared  and  recorded 
vote  of  Mattapoisett.  They,  therefore,  adjourned  to  meet  on  the 
day  following,  for  the  purpose  of  procuring  legal  advice  and  far- 
ther considering  their  duty  in  the  case.  The  town  clerk  of  Matta- 
poisett repaired  to  New  Bedford  for  such  advice,  which,  as  he 
stated  it,  was  to  waive  informalities  of  return,  and  be  governed  by 
the  record  as  made  and  declared.  This  advice,  not  having  been 
submitted  in  writing,  was  disregarded,  the  vote  of  Mattapoisett 
was  rejected,  and  a  certificate  of  election  given  to  Mr.  I^ng,  the 
sitting  member,  at  the  said  adjourned  meeting  of  the  clerks. 

At  this  adjourned  meeting  of  the  town  clerks,  the  said  clerk  of 
Mattapoisett  had  with  him  and  presented  a  transcript  of  the  rec- 
ord of  said  town,  conformable  to  the  statute  in  every  respect, 
except  that  it  bore  date  on  that  daj',  it  being  the  second  da}-  after 
the  election.  This  return  was  rejected  by  said  clerks  for  the  reason 
that  it  had  not  been  sealed  up  in  open  town  meeting,  as  required 
by  law.  Your  committee  are  of  the  opinion  that  the  said  clerks 
erred  in  thus  rejecting.  The  spirit  of  our  laws,  as  well  as  the 
decisions  of  our  courts,  would  authorize  the  clerks  to  have  received 
this  return,  and  to  have  been  governed  by  it  in  coming  to  their 
rcKult. 

The  duties  of  clerks  of  towns  composing  a  representative  dis- 
trict are  quite  similar  to  those  of  mayor  and  aldermen,  in  making 
up  the  result  of  an  election  by  wards.  The  law  provides  that  the 
mayor  and  aldermen  shall  give  notice  to  ward  officers  of  any 
"  error  or  deficiency  in  the  form  "  of  their  returns,  and  the  ward 
olllcers  arc  required  in  such  case  to  "  make  a  new  and  additional 

•  Substantially,  Pub.  Stats,  chap.  8,  §  8. 


tOBEY   V.    KING.       HOUSE,    1859.  63 

return,  which  additional  return,  whether  made  upon  such  notice,  or 
b}'  the  officers  of  any  ward  without  such  notice,  shall  be  received 
by  the  mayor  and  aldermen "  ;  and  no  such  "  returns  shall  be 
rejected,  where  the  whole  number  of  votes  given  for  any  officer  or 
representative  voted  for"  can  be  ascertained.  See  chapter  209, 
Act  of  18r)2.  It  is  true  that  this  law  does  not,  strictly  speaking, 
apply  to  the  clerks  of  towns  comprising  a  representative  district, 
or  that  they  are  expressly  required  to  give  notice  of  errors  in 
returns,  or  to  seek,  and  be  governed  by,  amended  or  additional 
returns,  but  such  is  its  spirit. 

Chapter  282  of  the  Acts  of  1852,*  provides  that:  "No  select- 
men of  any  town  in  this  Commonwealth  shall  give  a  certificate  of 
election  to  any  person  voted  for  as  a  representative  to  the  general 
court,  which  certificate  shall  not  be  in  accordance  with  the  declara- 
tion of  the  vote  in  open  town  meeting,  at  the  time  when  the  elec- 
tion so  certified  took  place,  under  a  penalty  of  three  hundred  dol- 
lars." 

The  duty  of  giving  certificates  of  election  to  representatives  has 
been  transferred  from  selectmen  and  town  clerks  to  town  clerks 
exclusively,  in  most  cases,  under  the  recent  amendment  of  the 
Constitution  ;  and  there  seems  to  be  no  good  reason  why  the  same 
penalty  should  not  be  applied  to  the  clerks  who  perform  this  duty 
as  to  selectmen  performing  the  same  duty.  The  spirit  of  this  law 
would  make  it  alike  penal  for  the  clerks  to  give  such  certificate, 
not  in  accordance  with  the  declaration  of  the  vote  in  open  town 
meeting,  which  the  clerks  in  this  district  seem  to  have  done. 

But  the  town  clerks  would  have  been  more  completely  justified 
in  receiving  the  return  in  question,  although  made  on  the  second 
day  after  the  election,  by  a  decision  of  the  supreme  judicial  court 
of  this  Commonwealth,  from  which  we  extract  the  following  :  — 

"  But  shall  the  whole  town  be  disfranchised  by  reason  of  the 
fraud  or  negligence  of  their  officers  ?  This  would  be  punishing  the 
innocent  for  the  faults  of  the  guilty.  It  would  be  more  just  and 
more  consonant  to  the  genius  and  spirit  of  our  institutions  to  inflict 
severe  penalties  upon  the  misconduct,  intentional  or  accidental,  of 
the  officers,  but  to  receive  the  votes  whenever  they  can  be  ascer- 
tained with  reasonable  certainty.  If  no  return,  or  an  imperfect 
one  be  received,  let  it  be  supplied  or  corrected  by  a  reference  to  the 
orignal  record,  if  any  there  be."     See  20  Pick.  484. 

There  was  no  alleged  fraud  in  the  case  before  3-our  committee, 
and  no  dispute  as  to  the  correctness  of  the  record  of  Mattapoisett, 
and  it  cannot  be  doubted  that,  if  the  clerks  had  been  governed  by 

*  Substantially  Pub.  Stats,  chap,  8,  ^  20, 


64  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

the  decision  above  quoted,  the  certificate  of  election  would  have 
been  given  to  the  petitioner. 

Chapter  ;511  of  the  Acts  of  1857,*  provides  for  meetings  of 
the  clerks  of  towns  composing  a  representative  district,  to  be  holden 
at  a  place  designated  and  appointed  therefor  by  the  count}^  com- 
missioners. The  clerks  of  the  district  did  not  compl}-^  with  this 
provision  of  law.  Their  meeting  was  holden  at  the  office  of  the 
town  clerk  of  Rochester,  who  is  the  sitting  member,  whereas  the 
county  connnissioners  designated  and  appointed  the  town  house  in 
said  town  as  the  place  of  said  meeting.  Cases  might  occur  when 
such  failure  of  the  clerks  to  meet  at  tlie  place  legally  designated 
would  be  highly  objectionable  ;  and  in  this  case  it  was  unjustifiable. 
The  meeting  was  holden  quite  near  the  place  designated,  and  there 
is  no  pretence  that  the  result  would  have  been  different,  had  the 
meeting  been  at  the  place  appointed  by  law.  The  committee 
simply  report  tliis  fact  as  one  of  the  many  cases  of  informality  and 
illegality  in  the  proceedings  of  town  officers,  which  the  committee 
regret  to  say  have  appeared  before  them  in  their  investigations  of 
this  and  the  former  case  submitted  to  them. 

In  \iew  of  the  facts  and  considerations  herein  set  forth,  your 
committee  are  unanimousl}'  of  the  opinion  that  the  sitting  mem- 
ber, Theophilus  King,  is  not  entitled  to  a  seat  in  this  house,  and 
that  the  petitioner,  Job  T.  Tobey,  was  legally  elected  a  repre- 
sentative, and  is  entitled  thereto. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1859, 
p.  ll'.t.] 

•  Substantially  Pub.  Stats,  chap.  8,  ^  9, 10. 


PRINCE    r.    CLAltK.       HOUSE,    1859.  65 


Frederick  O.  Prince  v.  Oliver  R.  Clark. 

House  Document,  No.    3G.     February   3,  '  1859.     Keport    by    Nathaniet. 

lIiNCKLKY,  Chairman. 

Double  Voting.  Where  votes  are  fonnd  so  folded  or  adhering  together  in  the 
ballot-box  as  to  prove,  in  the  honest  opinion  of  the  selectmen,  double  voting,  and  the 
selectmen  thereupon  reject  one  vote  of  each  set  of  such  double  votes,  it  will  be  pre- 
sumed that  their  judgment  and  action  were  correct. 

Semblc.  Where  two  votes  tor  the  same  cantlidate  at  an  election  are  cast  by  one 
qualified  voter,  one  of  them  will  be  counted. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Frederick  O.  Prince  of  Winchester,  praying  for  a  seat  in  this 
house,  as  a  representative  from  the  sixth  Middlesex  representa 
live  district,  instead  of  Oliver  R.  Clark  of  said  Winchester,  the 
sitting  member,  submit  the  following  report :  Said  district  is  com- 
posed of  the  towns  of  West  Cambridge  and  Winchester,  and  is 
entitled  to  one  representative. 

The  vote  in  said  district  for  representative,  as  declared  and 
lecorded  at  the  election  in  November  last,  as  appeared  by  evidence, 
was  as  follows  :  — 


West  Cambridge. 

Winchester. 

Total. 

Oliver  R.  Clark, 

135 

156 

291 

Fredei'ick  ().  Prince, 

164 

126 

290 

By  virtue  of  this  record,  the  certificate  of  election  was  given  to 
Mr.  Clark.  A  single  vote  more  for  Mr.  Prince  would  have  pre- 
vented a  choice.  Two  additional  votes  for  him  would  have  en- 
titled him  to  the  certificate  of  election. 

It  appeared  in  evidence,  that  there  were  three  votes  found  in 
the  ballot-l»ox,  all  of  which  were  for  Mr.  Prince,  and  all  of  which 
were  rejected  by  the  selectmen,  in  counting  and  making  up  the 
result.  One  of  these  was  admitted  by  him  to  have  been  rightly 
rejected.  The  other  two,  he  alleged,  were  wrongly  rejected,  and 
should  have  been  counted.  The  whole  case,  therefore,  tui-ns  upon 
lli('  justice  or  injustice,  legality  or  illegalit}',  on  the  part  of  the 
selectmen,  of  rejecting  the  votes  in  quesliou. 

The  Constitution  piovides,  that  "  The  house  of  representatives 
shall  be  judge  of  the  returns,  elections,  and  (lualifications  of  its 
own  members."  Your  committee  have  given  tlie  parties  in  this 
case  a  patient  hearing,  and  will  endeavor  to  report  the  circuui- 


»;G  MASs.vriirsF.riN   Ki.K.rTTON  cases lS.-:!-18S5. 

stances  and  evidence  in  the  case,  with  snrh  fullness  as  to  enable 
ihi-  House  to  jndo;e  eorrectly  thereon. 

The  witnesses  examined  before  the  committee  were  Josiah  Hovey, 
town  clerk,  Luther  R.  Symmes,  Cephas  Church  and  Samuel  M. 
Rice,  selectmen,  Charles  V.  Curtis,  Jr.,  Nathaniel  A.  Richardson, 
unil  the  pi'titioner,  all  of  Winchester. 

The  polls  were  opened  for  the  choice  of  state  and  other  officers, 
at  one  o'clock,  i-.  m.,  and  closed  at  six  o'clock,  p.  m.  The  voting 
for  lepresentative  was  on  a  separate  ballot,  and  the  votes  were 
deposited  in  a  box  separate  from  any  other  votes,  and  during  the 
balloting,  was  in  the  charge  of  Mr.  Church.  Mr.  Symmes,  chair- 
man of  the  selectmen,  had  charge  of  the  balloting  for  state  and 
other  othcers,  aii<l  Mi-.  Rice  of  the  check  list. 

It  was  shown  and  admitted,  that  more  persons  voted  and  were 
•  •becked  on  the  list,  than  the  whole  number  for  representative,  with 
tlie  addition  of  the  votes  in  question  ;  but  there  was  no  distinct 
check  mark  denoting  who  voted  for  representative,  and,  therefore, 
the  check  list  furnishes  no  information  on  that  ])oint.  Had  the 
check  list  denoted,  separately,  those  who  voted  for  representative, 
it  miirht  have  aided  materiallv  in  arriving  at  the  truth. 

For  the  purjtose  of  convenience  the  several  rejected  votes  will 
be  denominated  the  Parl'er  vote,  the  torn  vote,  and  the  folded. 
vote. 

Tile  testimony  of  Mr.  Richanlson,  who  is  treasurer  and  collector 
of  Winchester,  was  to  the  (jffect  that  he  saw  a  Mr.  Parker  approach 
the  ballot-box  and  deposit  two  votes,  and  that  he  (the  witness) 
informed  Mr.  Rice,  who  answered  that  they  could  tell,  for  they 
had  just  before  turned  the  box.  The  box  was  examined,  two  votes 
were  found  for  Mr.  Prince,  and,  as  before  stated,  he  agrees  that 
one  of  them  was  rightly  rejected.  This  rejection  seems  generally 
acquiesced  in.  The  fact  need  not  have  been  reported  except  for 
the  .sake  of  explaining  a  disagreement  in  one  particular  between 
the  town  (rierk  and  one  of  the  selectmen,  Mr.  Church,  which  will 
liereafter  appear. 

It  appeared  that  the  ballot-box  was  turned  and  emptied  of  its 
contents,  for  the  purpose  of  assorting  and  counting  the  votes,  tw^o 
or  three  times.  It  was  not,  stated  by  any  one,  positively,  how 
many  limes.  Nor  was  it  positively  stated  at  which  turning  of  the 
box  the  torn  and  foldeil  ballots  were  found.  It  appeared  to  have 
b<ren  at  about  four  or  five  o'clock.  Both  parcels  were  found  in  one 
and  the  sjime  pile,  and  both  by  Mr.  Church. 

The  torn  and  folded  votes  were  each  rejected,  because  of  being 
found  in  such  proximity  and  connection  with  other  votes  as  to  con- 
vince the  selectmen,  that  in  each  case   there  had   been   double 


IMMNCK    V.    CLARK.       HOUSE,    1859.  67 

voting.     This  will  ticcount  for  the  use  of  the  plural  number  in  the 
testimony  in  regard  to  them. 

The  testimony  of  the  witnesses  was  substantially  as  follows  :  — 

Testimony  of  Mr.   Church. 

The  folded  votes  were  first  found  by  me  in  the  pile,  after  the 
box  luid  been  turned  on  the  table.  When  I  took  them  up  they  had 
the  appearance  of  having  been  voted  b}^  one  person.  They 
adhered  together,  The}^  were  folded  together  when  found,  which 
was  after  about  one-third  or  one-fourth  of  the  pile  had  been  taken 
up  and  assorted.  Tlie}^  must  have  been  folded  closely  together 
l)('fore  tlie  votes  were  taken  off  which  had  been  assorted.  1  held 
them  up  to  Mr.  Hymmes,  and  said  I  believed  there  wore  two  votes 
or  double  votes.  There  was  no  sign  of  an}-  opening,  except  about 
an  eighth  of  an  inch  at  one  corner,  where  I  took  hold  and  drew 
them  apart.  I  found  the  second  pair,  or  torn  votes,  about  midwa}' 
of  the  pile.  There  was  no  separation ;  the}^  adhered  together 
throughout.  My  impression  is,  that  the  edges  conformed  through- 
out, but  cannot  sa}'  positively.  I  showed  them  to  Mr.  Symmes, 
and  said  to  him,  here  is  another  double  ballot.  We  looked  at  it 
and  I  took  hold  of  the  edge  and  separated  them ;  called  Mr.  Rice's 
attention  to  it,  and  also  Mr.  Ilovey's.  Asked  Mr.  Hove}'  what  he 
thought  of  that  l)allot.  He  said  he  had  no  doubt  but  what  it  was 
put  in  by  one  man  —  that  is,  both  votes.  In  relation  to  both  the 
torn  and  folded  votes,  witness  believes  it  to  be  an  impossibility  in 
either  case,  for  two  persons  to  have  put  in  these  ballots,  and  for 
them  to  have  come  together  as  found  in  the  pile.  Had  no  doubt 
thou,  and  has  none  now,  that  in  each  case,  they  were  deposited  by 
one  and  tiie  same  person. 

Testimony  of  Mr.  Rice. 

My  attention  was  called  to  the  torn  and  folded  votes  by  Mr. 
Church.  The  torn  votes  were  together,  the  torn  edges  correspond- 
ing exactl}'.  I  gave  it  as  m}'  opinion  that  they  were  thrown  by 
one  and  the  same  person.  The  folded  votes  were  not  folded 
square  across,  but  somewhat  at  an  angle.  Am  not  so  conli- 
dent  as  to  these,  that  one  person  put  them  in,  but  that  was  my 
opinion.  I  stated  at  the  time,  as  my  opinion,  that  not  one  time  in 
a  million  would  the  votes,  if  thrown  separately,  have  come 
together  as  found.  My  opinion  was  the  same  as  to  the  torn  votes, 
the  edges  agreed  exactly,  and  showed  that  they  must  have  been 
torn  together,  and  had  not  been  separated.  Had  no  doubt  at  the 
time,    that   in   both   cases   there  was    double  voting.     Have  seen 


r„S  MASSACIIUSKTTS  .KLKCTION    CASES^  —  1S5:l-18Sr,. 

nothing  since  to  change  my  mind.     Was  in  favor  of  throwing  out 
;ill  fonr  <.f  the  votes. 

Testimony  of  Mr.  Symmes. 

rhere  were  three  votes  for  Mr.  Prince  rejected,  the  Parker  vote 
:ind  two  others.  The  folded  votes  were  found  first.  [Here  the 
four  liaUots  were  exhibited.]  Mr.  Church  picked  them  up  and 
showed  them  to  me.  We  were  both  assorting  and  counting  the 
representative  votes,  lie  said  tliero  were  two  votes  stuck  together, 
that  one  [jcrson  had  thrown  them  both  ;  that  was  the  substance, 
pt-rhaps  not  the  exact  hinguage.  I  replied,  I  thought  so  ;  I  had 
no  doubt  ol"  it.  They  were  laid  aside.  I  came  to  ray  conclusion 
from  tlie  ai)pearance  of  the  votes.  We  were  both  picking  up  votes 
from  till'  same  pile,  on  the  second  counting  or  turning  of  the  box, 
I  think.  The  story  of  the  torn  votes  is  the  same.  They  were 
liickod  up  by  Mr.  Church  in  the  same  pile,  and  seemed  to  adhere 
closejy.  Had  no  doubt,  not  a  sluulow  of  a  doubt,  that  in  each 
case,  the  votes  were  cast  by  one  person.  He  could  not  place 
them  before  the  committee,  as  they  then  appeared,  without  paste. 
They  had  been  kei)t  in  tlie  town  safe.  My  mind  was  made  up, 
that  either  two  or  the  four  should  l)e  rejected. 

We  took  legal  advice  of  Mr.  Prince,  and  also  of  Mr.  Curtis. 
We  asked  it  beeause  we  did  not  know  whether  the  law  required 
that  one  or  l>otli  should  be  discarded.  Mi-.  Curtis  replied  that  lie 
had  not  looked  up  the  law,  but  as  an  ott-hand  decision  he  would 
.say  tlial,  if  we  had  found  that  there  had  been  double  voting,  dis- 
i.-ard  one  in  each  ease.     The  ojVmiou  of  Mr.  Prince  was  similar. 

Testimony  of  Mr.   I/ovei/. 

The  seleetmeii  thought  upon  consultation  that  two  sets  of  votes 
were  found  so  placed  together  that  they  might  have  been  put  in  by 
one  person  ;  that  is.  each  of  tiie  sets,  or  in  other  words,  two  per- 
MiUH  voted  double,  ."Ml.  Church  called  on  the  other  selectmen  to 
examine  llic  votes  referred  to,  and  when  Mr.  Rice's  attention  was 
ealled  to  them,  mine  was  also.  One  set  was  partially  folded  and 
appeared  to  have  been  closely  folded.  The  other  set  was  torn  otl' 
at  the  c«)rner,  eacii  corresi)onding,  and  at  a  slight  angle.  They 
wc-re  loni  exactly  alike  and  lay  exactly  over  each  other.  T  gave 
jny  opinion  that  they  might  have  been  put  in,  in  botli  cases  l)y 
diiferent  persons,  and  that  they  might  have  come  together  as 
found.  I  should  linve  decided  that  they  were  cast  by  different 
persons. 


iMMNCK   '•.  ('lai;k.      ih)i;m;,   isoO.  69 

This  testimony  coutiicts  somewhiit  with  that  of  Mr.  Church,  who 
testifies  positively  that  Mr.  Hovej*  said,  in  regard  to  the  torn  votes, 
that  he  had  no  doubt  they  were  put  in  by  one  person.  Mr.  Hovej- 
is  as  positive  that  his  remark  was  in  reference  to  the  Parker  vote, 
and  not  in  relation  to  the  torn  vote.  Be  that  as  it  may,  no  suspi- 
cion of  intentional  misstatement  or  frauthilent  intent  rests  on 
either,  and  one  or  the  other  lias,  doubtless,  unintentionally  erred 
in  his  statement. 

To  the  selectmen  belongs  the  duty  of  receiving,  assorting,  count- 
ing and  declaring  the  vote  and  we  must  necessarily  rely  mainly  upon 
their  testimony.  The  position  and  duties  of  the  selectmen,  espe- 
cially in  this  case  that  of  Mr.  Church,  enabled  him  and  them  to  judge 
more  truly  than  an}'  other  person  could.  The  testimony  of  all  of  the 
selectmen  is  as  strong  as  the  nature  of  the  case  will  admit,  and  no 
one  imputt's  to  them  any  intentional  error.  The  petitioner  relied 
strongly  on  the  [)oint  that,  the  votes  l)eing  found  in  the  ballot-box, 
the  legal  presumption  was  in  his  favor,  and  that  it  devolved  on  the 
respondent  to  prove  that  they  were  not  legally  cast.  Admit  this 
l)osition  to  be  rightly  taken,  then  how  shall  we  judge?  The  select- 
men had  no  doubt.     Can  we  judge  I  tetter? 

The  connnittee  have  l)efore  them  the  certificate  of  election  of 
Mr.  Clark.  That  is  presumptive  evidence  of  his  election,  and  it 
devolves  on  the  petitioner  to  prove  that  he  was  not  elected. 
Neither  of  these  assumptions  of  prima  facie  evidence  is  control- 
ling, and  we  nmst  judge  according  to  the  evidence. 

A  similar  case  to  the  one  before  us  was  decided  by  the  House  in 
1843,  from  which  we  quote  as  peculiarly  applicable  to  this  case,  as 
follows  :  — 

'■'•  The  evidence  to  show  these  facts  must  of  necessity  often  be, 
and  in  this  case  was,  derived  from  the  appearance  of  the  ballots  at 
the  time.  It  is  difficult  to  describe  these  appearances  to  the  satis- 
faction of  those  not  eye-witnesses.  The  committee  believe,  that 
nmch  in  these  cases  is  to  lie  trusted  to  the  judgment,  integrity, 
and  good  common  sense  of  the  selectmen.  It  is  to  be  presumed 
that  their  judgment  is  correct,  and  the  burden  of  proof  is  upon 
those  who  would  question  the  correctness  of  that  judgment.  In 
this  case  there  is  not  the  slightest  imputation  upon  their  candor, 
fairness  and  deliberation."  —  3Iassachiisetts  Election  Cases  (Cush- 
ing.  S.  &  J.),  p.  4(;.o.  * 

*  [Noll-:  ]!Y  THE  Edi'ioks.  TLis  w:is  tlie  cane  of  the  town  ut'  Dnrtniou/ h  (Cusliitig. 
S.  and  J.,  p.  465),  in  which  the  House  held  that  where  three  ballots  were  found  in  the 
l)allot-box,  bearing  the  name  of  the  same  candidate,  and  so  folded  and  doubled 
together  as  to  satisfy-  the  selectmen  that  they  were  all  put  into  the  box  by  the  same 
person,  and  the  selectmen  thereupon  rejected  two  and  counted  one  of  them,  in  the 


lO 


\1  \>SA<'1IUSKTTS    KLKCTION    CASES ]85.S-188o. 


The  tostiinony  of  ISIessrs.  Prince  and  Curtis  corroborated  that  of 
Mr.  Symmcs  iii'relatiun  to  the  legal  advice  obtained.  Mr.  Curtis 
sai.l :  Ur.  Synmies  has  stated  the  matter  very  fairly.  I  told  him,  as 
:i  sn:i|>  judsiment,  that  if  there  had  been  double  voting,  one  vote 
should  i)e  discarded  in  each  case.  Mr.  Prince's  testimony  on  that 
point  was  materially  the  same. 

The  testimony  of  Mr.  Prince  was  mostly  relative  to  i)rocuring 
anil  separating  the  ballots,  and  was  substantially  as  follows  :  — 

He  ordered  the  printing  of  six  hundred,  by  Mudge  &  Son,  on 
Monday,  the  day  before  election ;  to  be  ready  at  half-past  5 
o'elock.  p.  M.  At  5  o'clock  he  called  for  them  and  they  were  not 
leailv.  He  hurried  the  printers,  waited  as  long  as  he  could,  and 
went  away  with  what  he  could  get  —  about  175  sheets,  with  three 
votes  on  each,  or  525.  In  the  evening  he  undertook  to  tear  them 
apart  witli  an  ivory  paper-folder,  tearing  several  at  a  time,  but 
tinding  that  difficult,  cut  the  remainder  apart  with  scissors. 

This  testimony  was  introduced  for  the  purpose  of  explaining  or 
accounting  for  the  appearance  of  the  torn  vote.  The  manner  of 
tearing  made  the  edges  rough,  and  with*  the  haste  in  doing  it,  might 
account  for  the  angular  appearance.  Perhaps  the  feet  of  the 
halh^ts  being  torn  as  the}'  were,  and  being  so  recently  from  the 
printing  office  lohen  torn  or  cut,  may  in  part,  at  least,  account  for 
their  adhesion,  as  testified  to  hj  the  selectmen. 

'i'he  testimony  in  regard  to  the  meeting  united  in  showing  that  it 
was  orderly,  and  that  there  was  no  confusion. 

Your  committee,  with  a  single  exception,  are  decidedly  of  tlie 
opinion  that  the  decision  and  action  of  the  selectmen  was  right. 
( )n  the  part  of  one  of  its  members  strong  doubts  are  entertained 
on  that  point,  but  nevertheless,  they  unanimously  recommend  that 
the  petitioner  have  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.   H.J.,  1859,  p.  241,] 

iihiicnro  ol  evidence' to  contradict  tlic  conclusion  of  the  selectmen,  or  to  impute  any 
iinfairncHs  to  them,  their  action  should  stiind  as  correct.  The  authorities  hold,  in 
the  nl)Kcncc  of  statutory  rejjuhition,  that,  where  two  votes  are  cast  by  the  same 
II  for  one  candidate  for  the  same  office,  one  vote  should  be  counted  and  one 
'  d.  a>s  wu«  done  by  the  selectmen  in  the  above  case.  State  v.  Pierce,  35  Wis.  93. 
/■  '.  V.  Sartnn,  22  N.  Y.,309.  Case  of  Ashfield,  Gushing,  S.  and  J.,  583,  McCrary 
!  '■.    Wlicre  a  person  votes  twice  at  an  election,  for  the  same  candidate, 

1.^         ^  liould  be  counted,  and  his  second  vote  rejected.    People  v.  Holden,  28 

CbI.  12.'{.     Cwiking,  Law  atid  Pr.  of  Leg.  Assemblies,  \J  91.] 


IN    1;K    (ilMFFIN.        llorsE.    ISoit.  71 


In  RE  John  Q.  A.  Griffin. 

Mouse  Document,  No.  291.  October  2G,  1859.  Okokuk  W.  rAUMKNTKR  of 
Boston,  NATiiANiicr.  Hinoklky  of  Barnstable,  AuorsTUS  L.  Wkst  of 
New  Bedford.  Nathax  B.  Edwauds  of  Cliehnsford,  Caleb  Citsiiix<; 
of  Ne\vburyi)ort,  Amos  B.  Merkii.:,  of  ISostou,  and  Charles  BiMMiir.K- 
oojr  of  Barre,  Committee  of  Iii(|iiiry.     K'eport  by  Mr.  Mekuii.i,. 

Eligibility  af  Mcniber.  Acceptance  of  Ojfice  i)f  Clerk  nf  Courts  vacates  seat. 
Where  a  representative,  during  tlie  recess  of  tlie  legislature  was  api)ointed  by  the 
supreme  judicial  coiu't  clerk  of  tiint  court,  of  the  court  of  connnou  pleas,  and  of  tlic 
county  comuiissioners,  for  the  county  of  Middlesex,  to  till  a  vacancy,  and  qualilied 
for,  and  assumed  tlie  duties  of  that  office,  although  he  resigned  the  office  before  the 
legislature  rcassenibied,  it  was  held,  that  under  Art.  II.  of  chap,  fi  of  the  Constitution, 
by  the  assumption  of  tlie  oliice  of  clerk,  he  vacated  liis  seat  as  representative. 

The  Committee  of  Inquiry,  appointed  mnier  an  Order  passed 
September  30,  to  consider  and  report  upon  "the  right  of  the  sitting" 
meml)er  from  MaUIen  to  a  seat  in  this  House,"  liaving  notified  said 
member  of  their  readiness  to  hear  liini,  and  requested  liim  to 
appear  and  present  liis  case,  and  he  lia\ing.  l>y  letter,  declined  so 
to  appear,  proceeded  to  make  incpiiry,  as  directed,  and  to  consider 
the  subject  matter  of  said  Order  ;  and  having  performed  said  (hity, 
respectfully  submit  the  following  rci)<)rt :  Tlie  conunittee  have 
ascertained  and  report  the  facts,  as  follows  :  — 

On  the  20th  of  June  last,  John  Q.  A.  (iriflhi  of  Maiden,  a  duly 
returned  and  qualified  member  of  this  House,  representing  the 
fourth  representative  district,  Middlesex  County,  while  sitting 
as  a  member,  on  the  part  of  this  house,  of  the  joint  special  com- 
mittee of  the  legislature,  appointed  under  chapter  7,  of  the  Resolves 
of  1.S5!»,  during  the  recess  of  the  legislature,  was,  at  a  term  of 
the  supreme  judicial  court  held  at  Boston,  for  the  counties  of 
Suffolk  and  Nantucket,  a})pointed  by  said  court  clerk  of  the  supreme 
judicial  court,  court  of  common  pleas,  and  of  the  county  com- 
missioners of  the  county  of  Middlesex,  to  fill  a  vacancy  occasioned 
by  the  resignation  of  Seth  Ames,  Esq.,  then  clerk,  to  take  effect 
June  24,  185!(,  and  to  continue  until  the  annual  election  in  Novem- 
ber, or  until  the  choice  or  appointment  of  another.  On  June  24,  Mr. 
Griftin  took  and  subscribed  the  recpiired  oaths  before  the  chief 
justice  of  the  supreme  judicial  court,  at  lioston  ;  executed  to  the 
treasurer  of  the  county  of  Middlesex  the  required  bond,  and  en- 
tered on  the  duties  of  clerk  of  the  court  of  common  i)leas,  then 
sitting  at  Cambridge,  and  of  tlie  supreme  judicial  court,  for  Mid- 


( :: 


>  M\»\(  III  SKITS    KMOCTION    CASES 1853-1885. 


difsi-x  ComiLv.  He  perloniied  the  duties  of  clerk  of  the  court  of 
common  |)U-:is  until  July  1,  when  said  court  ended,  and  of  the 
supreme  Judicial  court  until  September  1,  when  his  term  of  office 
oxpiri'd  hv  his  resignation,  and  the  appointment  of  James  Dana, 
Ksq.,  as  clerk,  in  his  stead.  During  said  periods,  Mr.  CrHllin,  as 
clerk  of  said  respective  courts,  entered  on  the  records  of  said  courts 
tiecrees  and  judgments,  taxed  costs,  issued  out  of  the  clerk's 
ollices  thereof,  respectively',  writs  of  e.vecntion  and  other  writs, 
signed  bv  him  as  clerk,  and  took,  and  is  entitled  to  have,  the  fees 
and  emoluments  payable  to  the  clerk  in  each  of  said  courts. 
AftiM-  June  24,  said  joint  committee  of  the  legislature  continued 
its  sittings  until  Septeml)er  (!,  but  Mr.  Griffin  jjerformed  no  duty 
therein  after  July  11,  on  which  day  he  declined  to  serve  longer  as 
a  member  of  said  committee. 

The  committee  find  and  report,  that  Mr.  Griffin,  while  a  member 
of  this  house,  sitting  and  acting  as  member  of  the  house,  on  a 
joint  legishitive  connnittee  authorized  by  law  to  sit  in  the  recess, 
was  appointed  to  the  office  of  clerk  of  the  judicial  courts  of  the 
county  of  Middlesex  ;  that  he  accepted  said  office  ;  was  duly  (juali- 
fied  ;  entered  on  and  i)erformed  the  duties  of  clerk  of  the  supreme 
judicial  court  and  court  of  common  pleas  ;  and  that  he  resigned 
said  office  of  clerk  in  the  recess,  and  another  was  appointed  in  his 
place. 

The  connnittee  find  the  constitutional  [)rovision  applicable  to 
the  case,  in  chaj)ter  (j,  article  2,  of  the  Constitution  ;  and  it  is 
as  follows :  — 

'•  No  pi'-rsoii  holding  the  office  of  clerk  of  the  supreme  judicial  court 
or  cl«,Tk  of  the  inferior  court  of  common  pleas  shall  at  the  same  time 
have  a  seat  in  the  house  of  representatives,  but  his  being  chosen  or 
appointed  to,  and  accepting  the  same  shall  operate  as  a  resignation  of 
his  seat  in  the  house  of  representatives,  and  the  place  so  vacated  shall 
lie  fiileil  up."' 

I.  The  committee  have  first  inquired  what  courts  are  intended 
in  iliis  article. 

Neither  the  supreme  judicial  court,  or  court  of  common  pleas, 
as  now  or  late  established,  nor  any  other  courts  of  these  specific 
names  existed  at  the  time  of  the  adoption  of  the  Constitution. 
The  framers  of  that  instrument  could  not  have  foreseen  by  what 
names  or  styles,  or  with  what  precise  divisions  of  power,  future 
legislatures  woid.l  '' erect  and  constitute  courts  and  judicatories" 
under  the  authority  given  them  by  the  Constitution  in  chapter  1, 
article  .*{.  It  is  the  object  of  a  Constitution  to  establish  general 
principles,  and  ordain  general  rules,  which  shall  be  constant,  and 


IN    );i:    (MMKFIX.       HOUSE,    1859.  73 

of  pfrpetiiul  obligation.  It  is  therefore  plain,  that  the  terms 
"•  siiprciiu'  Judicial  court"  and  "inferior  court  of  common  pleas" 
are  used  in  the  Constitution  as  a  general  description  of  grades  of 
courts,  to  be  established  under  it,  and  that  therefore  they  cannot 
be  limited  to  courts  of  these  particular  names  or  organizations, 
either  tiien  existing  or  subsequently  established.  Otherwise,  what 
was  intended  for  a  permanent  rule  and  perpetual  i)rohibition  to  the 
legislature  would  be  a  rule  and  prohibition  only  at  the  will  of  the 
legislature,  and  would  prevail,  be  dispensed  with  and  again  restored, 
according  as  the  legislature  preserved,  changed,  or  restored  the 
names  and  forms  of  courts.  Tlie  subject  of  these  descriptive  terms 
must  be  sought  in  the  essential  qualities  of  courts,  well  under- 
stood by  the  framers  of  the  Constitution,  permanent  in  their  nature, 
and  intended  by  the  Constitution  to  be  kept  so.  under  wliatever 
names  or  forms  the  courts  might  be,  from  time  to  time,  established. 

When  the  Constitution  was  framed,  there  existed  two  provincial 
common  law  courts  of  record,  in  which  was  vested  the  power  to 
hear  and  determine  common  pleas  or  actions  at  common  law, 
namel}' :  the  superior  court,  and  the  inferior  court  of  common  pleas. 
The  former  was  the  highest  judicial  court  of  the  province,  or  new 
state,  having  in  addition  to  its  jurisdiction  in  civil  cases,  supreme 
criminal  jurisdiction  as  court  of  assize  and  general  jail  delivery. 
It  had  as  full  jurisdiction  in  the  province,  as  the  courts  of  king's 
bench,  common  pleas  and  exchequer  had  in  England.  It  was  the 
higher  court  of  common  pleas,  because  in  addition  to  its  own  origi- 
nal jurisdiction  it  had  jurisdiction  and  control  on  appeal,  by 
review,  writ  of  error  and  otherwise,  of  all  actions  and  trials  in  the 
loiver  courts  of  common  pleas.  Anc.  Chart.  330. 

The  latter  consisted  of  courts  in  each  county  which  had  juris- 
diction of  all  civil  actions  in  the  county,  triable  at  common  law. 
Being  subject  to  the  higher  and  final  jurisdiction  of  the  superior 
court,  which  might  control  its  proceedings,  it  was  the  inferior  court 
of  common  pleas.  Anc.  Chart.  321). 

To  the  superior  court  of  the  province  succeeded,  by  St.  1781, 
chap  17,  the  supreme  judicial  court,  which,  established  by  St. 
1782,  chai).  '.»,  and  continued,  remodelled,  and  variously  altered  b\- 
subsequent  statutes,  has  hitherto  remained  and  now  is  the  highest 
common  law  court  of  record  of  the  Commonwealth,  with  like  juris- 
diction, civil  and  criminal,  and  like  supervision  and  control  of 
inferior  courts  as  the  provincial  superior  court  had. 

To  the  inferior  courts  of  common  pleas  have  succeeded  (1782, 
chap.  11)  courts  of  common  pleas  within  each  county;  (1811, 
chap.  33)  circuit  courts  of  common  pleas;  (1813,  chap.  173)  in 
Suffolk  County,  the  Boston  court  of  common  pleas;  (1820,  chap. 


74  M  \»\(  III>I:TTS    election    cases — 1853-1S85. 

70)  the  court  of  common  pleas  for  the  Commonwealth  ;  (1855, 
chap.  449)  in  SutTolk  Connty,  the  superior  court  for  the  county  of 
Siitfolk  :  ami  (1S59,  chap.  19G)  "the  superior  court."  These  suc- 
cessors, ill  all  their  shapes  and  changes,  have  preserved  the  origi- 
nal and  essential  qualities  of  the  provincial  inferior  courts  of  com- 
mon pleas  intended  to  be  i)erpetuated  by  the  Constitution,  and 
have  remained,  and  now  are  common  law  courts  of  record,  with 
jurisdiction  to  hear  and  determine  actions  at  law,  subject  to  the 
higher  jurisdiction,  superAlsion  and  control  of  the  supreme  judicial 
court  of  their  trials  and  proceedings,  by  appeal,  exceptions, 
review,  error  and  ^other  process,  in  like  manner  as  the  provincial 
inferior  courts  were  subject  to  the  provincial  superior  courts. 

It  seems  then  to  be  tlie  intent  of  the  Constitution  to  perpetuate 
the  essential  qualities  and  peculiar  relation  of  control  and  sulwrdi- 
uation  which  existed  in  and  ])etween  the  judicial  courts,  when  the 
Constitution  was  formed,  by  two  classes  of  courts,  one  the  highest 
common  law  court  in  the  Commonwealth,  w^th  power  to  control  the 
proceedings  in  the  lower  courts,  which  is  described  therein  i)y  the 
Words  "supreme  judicial  court;"  and  the  other  the  common  law 
courts  having  jurisdiction  to  try  actions  at  law,  inferior  to  and  sub- 
ject to  supervision  and  control  by  the  higher  tribunal,  wdiich  are 
comprehended  and  described  in  the  Constitution  by  the  words 
"  inferior  court  of  common  pleas." 

Such  ap|)ears  to  be  the  opinion  of  the  framers  of  the  Constitu- 
tion, who  refer  to  these  courts  by  tiie  terms,  "  the  supeiior  court" 
and  '-the  inferior  court." — Tour.  Conv.  1780,  pp.  41,  42,  4:5,  81, 
91,  1  (i;;-4 ,116.  If  the  term  "  inferior  court  of  common  pleas  "  had 
not  included  the  several  inferior  courts  established  before  1820,  it 
is  to  be  sui)posed  the  convention  which  met  in  that  year  to  revise 
the  C<jnstitution  would  have  discovered  and  remedied  the  etfect ; 
but  Mr.  Webster,  to  whom  this  article  was  referred,  and  who 
reported  article  11  of  the  amendments,  did  not  suggest  a  difficulty 
or  report  a  change.  .Jour.  Conv.  1820,  pp.  65.  G6. 

The  committee,  therefore,  have  no  hesitation  in  finding  that  the 
supreme  judicial  coin-t  and  court  of  common  pleas  as  established 
wlieii  Ml.  (;,iilii,  was  appointed,  are  within  the  meaning  of  the 
article  .jf  ihe  Constitution  prescribing  the  rule  in  this  case. 

II.  Kiu-li  of  said  courts,  liad,  inseparable  from  it,  the  office  of 
clerk  thereof. 

The  several  Acts  establishing  each  of  said  courts,  and  the 
courtH  whieh  tiiey  succeeded,  establish  them  as  courts  of  law,  and 
provide  that  each  shall  have  a  clerk,  that  each  shall  have  power  to 
issue  wnt«,  and  that  such  writs  shall  issue  out  of  the  clerk's  office, 
and  be  signed  by  the  clerk  of  the  court. 


IN   i;k  (UMFrrN.      iioi  si;,    isno.  75 

Anc.  CIkuL,  222,  32!),  330  ;  Stat.  1782,  ch.  9,  11  ;  1811,  cli.  33  ; 
1813,  ch.  173;  1820,  ch.  79.  R.  S.  ch.  81,  82,  Act  of  Amend., 
ch.  82,  §35,  ch.  1)0,  §§  1,  2,  6. 

Further,  the  office  is  made  inseparable  from  these  courts  by 
chapter  G,  article  5^,  of  the  Constitution,  which  provides  that  all 
writs,  issuing  out  of  the  clerk's  office  in  any  of  the  courts  of  law, 
shall  be  signed  by  the  clerk  of  such  court;  so  that  an  Act  of  the 
legislature  even  cannot  dispense  with  the  office  in  these  common 
law  courts,  the  essential  qualities  of  which,  as  they  existed  at  the 
formation  of  the  Constitution,  are  adopted  and  perpetuated  by  it. 

Hence  is  it  that  legislatures  who  have  desired  to  unite  in  one 
person  the  several  offices  of  clerk  of  the  several  courts,  have  never 
abolished  these  ottices,  but  have  provided  that  the  clerk  of  one 
court  should  be  also  the  clerk  of  another,  or  that  one  person 
should  be  the  clerk  of  all  the  judicial  courts  in  the  county,  an 
expression  clearly  distributive  in  meaning,  and  signifying  clerk  of 
each  and  ever^'  of  them. 

Thus,  statute  1796,  chapter  !)5,  provides  that  the  clerk  of  the 
common  pleas  for  the  county  of  Suffolk,  shall  be  clerk  of  the 
supreme  judicial  court  for  the  counties  of  Suffolk  and  Nantucket. 

Statute  1811,  ch.  8,  "for  the  appointment  of  clerks  of  the 
court  in  the  several  counties,"  provides  for  the  appointment  b}' 
the  governor  and  council,  of  one  person  in  each  county,  '*  who 
shall  be  clerk  of  all  the  courts  holden  in  the  same  county,  under 
the  authority  of  this  Commonwealth,  and  who  shall  do  and  per- 
form all  the  duties,  services,  etc.,  which  he,  as  clerk  of  either 
of  said  courts,  ought  by  law  to  do  and  perform." 

Statute  1830,  ch.  129,  provides  for  the  appointment  by  the  jus- 
tices of  the  supreme  judicial  court  of  one  or  more  persons  in  each 
county,  "  who  shall  be  clerk  of  the  courts  in  the  several  counties, 
as  herein  provided  for,  who  shall  hold  their  office  for  fiA^e  years  ;  " 
that  the  clerks  thus  appointed  shall  have  the  custody  of  the  rec- 
ords remaining  in  the  respective  offices  of  the  clerks  of  the  supreme 
judicial  court,  court  of  common  pleas,  and  count}-  commissioners, 
and  "  shall  be  clerks  of  all  the  courts  aforesaid,"  "  holden  in  their 
respective  counties,"  and  "  do  and  perform  all  the  duties,  services, 
etc.,  which  they,  as  clerks  of  either  of  said  courts  ought  b}'  law  to 
do  and  perform,  and  shall  be  liable  to  all  the  penalties,  and  sub- 
ject to  all  the  restrictions  as  now  by  law  provided  ; '"  and  sect.  4  of 
the  chapter  fixes  the  respective  salaries  of  each  by  the  designation 
of  "clerk  of  the  county." 

The  provisions  of  this  statute  are  incorporated  into  chap.  88  of 
the  Revised  Statutes,  which  provides  in  like  manner  for  the  appoint- 
ment, b}'  the  justices  of  the  supreme  judicial  court,   of  "  one  or 


7«)  MASSACHUSETTS    KLKCTION    ("ASKS IHaH-lSSa. 

iiioro  persons  in  eacli  county,  to  be  clerks  of  ;ill  the  courts  which 
shall  be  held  in  their  respective  counties,"  that  they  "  shall  hold 
their  oltices  lor  five  years,"  and  fixes  their  salaries  under  the 
description,  "  tlie  clerk  of  the  county." 

It  is  evident  that  these  designations,  -'clerk  of  all  courts," 
••clerk  of  tlie  county,"  •' olllce  or  offices  of  clerk,"  are  used  only 
lor  the  sake  of  brevity  in  describing  the  mode  of  appointment  and 
conipensalion,  and  have  no  significance  beyond  describing  the 
ollices  of  clerk  of  each  and  every  of  said  courts. 

Siatute  18.56,  ch.  IT-l,  §2,*  provides  for  the  choice  for  the  term 
of  live  years,  by  the  legal  voters  of  the  several  counties,  except 
SuMblk.  liy  ballot,  for  theii'  respective  counties,  of  "a  clerk,  who 
sliall  act  as  clerk  of  the  supreme  judicial  court  and  court  of  com- 
mon pleas,  within  and  for  the  count}'  for  which  he  shall  be  chosen," 
and  by  the  legal  voters  of  Suffolk  Count}',  by  ballot,  for  said 
cotmty,  of  ••  a  clerk  of  the  supreme  judicial  court,  a  clerk  of  the 
su[)erior  court,  and  a  clerk  of  the  municipal  court  of  said  county  ; '" 
and  section  9,'-}-  under  which  Mr.  (Irittin  was  appointed,  provides 
that  '•  in  case  a  vacancy  shall  from  any  cause  occur  in  the  office  of 
any  of  the  clerks  of  courts  herein  before  mentioned,  the  judges  of 
the  said  several  courts,  or  a  majority  of  the  same,  ma}'  appoint  a 
suitable  person  to  fill  such  office  until  the  annual  election  in  Nov- 
ember next  thereafter,  or  until  another  is  chosen  or  appointed  in 
his  stead." 

The  use  of  the  words  "  clerk,"  "  clerks  of  courts,"  ''  such  office," 
"  said  office,"  is  not  distinguishable  from  the  use  of  like  expres- 
sions in  previous  statutes  before  noticed,  and  they  cannot  be  con- 
strued as  establishing  a  new  and  distinct  office,  nor  the  office  of 
clerk  of  each  of  said  courts.  Such  construction  is  precluded  by 
the  language  of  the  constitutional  provision  executed  by  this  Act. 
Amendment  of  the  Constitution,  art.  19,  declares  that  the  legisla- 
tiu-e  shall  prescribe,  by  general  law,  for  the  election  of  "  clerks  of 
courts"  by  the  people  of  the  several  counties  for  such  term  of  office 
as  the  legislature  shall  prescribe.  Tt  is  obvious  that  the  election 
is  to  the  offices  of  clerk  of  the  several  courts. 

The  words,  •'  who  shall  <(ct  as  clerk  of  the  supreme  judicial  court 
and  coin-tof  common  pleas,"  in  an  Act  entitled  "An  Act  concern- 
ing the  election  of  clerks  of  courts,"  appear  susceptible  of  but  one 
meaning,  namely,  "  who  shall  he  clerk  of  the  supreme  judicial  court 
.-.nd  court  of  comujon  pleas."  The  constitutional  provision,  above 
ciU'd.  an<l  the  sul>sefiuent  statute  of  1857,  chapter  1,  which  declares 
"  ihni  the  clerks  of  the  supreme  judicial  court  and  court  of  common 

*  s,...  ).,„,  stats,  .•huj..  10,  ^  ;.  t  Sec  VuU.  Stats,  .ha},.  15U,  ^  7. 


IN    \IK    aiMFFlN.       HOUSE,    1859.  77 

pleas  shall  be  hereafter  clerks  of  the  county  commissioners  for  their 
counties,"  seem  to  be  conclusive  of  the  question. 

The  committee  are  therefore  of  opinion,  that  an  appointment  to 
the  office  of  clerk,  under  the  provisions  of  St.  185(5,  ch.  17.S,  §  9, 
is  an  appointment  to  the  olfice  of  clerk  of  the  supreme  judicial  court, 
and  to  the  office  of  clerk  of  the  court  of  common  pleas. 

III.  It  will  be  noticed  that  section  l»,  above  cited,  provides  that 
in  case  of  a  vacancy  *•'  in  the  office  of  the  clerks  of  court  herein 
before  mentioned,  the  judges  of  the  several  courts,  or  a  majority  of 
the  same,  may  appoint  a  suitable  i)erson  to  fill  such  office." 

To  give  a  construction  to  the  words  "judges  of  the  several 
courts,"  it  must  be  observed  than  when  this  Act  was  passed,  the 
judges  of  the  supreme  judicial  court  had  the  power  to  appoint  the 
clerks  of  all  the  courts,  except  the  superior  court  of  the  count}^  of 
Suffolk,  and  the  municipal  court  of  the  city  of  Boston  ;  that  the 
judges  of  the  superior  court  had  the  power  to  appoint  the  clerks  of 
the  two  last  named  courts  ;  and  that  said  judges,  respectively,  had 
the  like  powers  of  appointment  to  fill  vacancies  in  said  offices. 
R.  S.,  ch.  88  ;  St.  185;"),  ch.  449,  §ij  2,  If.  ;  1843,  ch.  9,  §  2. 

The  provisions  of  this  section  (§  '.')  not  being  demanded  to 
carry  into  effect  amendment  of  Constitution,  art.  19,  which  is  full}' 
executed  by  other  sections  of  the  chapter,  must  be  construed  in 
connection  with  other  laws  relating  to  the  same  subject.  No  inten- 
tion to  repeal  tliose  laws  is  declared  ;  the  power  given  is  discre- 
tionary, and  may  be  accumulative  only.  Full  eflect  can  be  given 
to  all  provisions  of  law  relating  to  this  subject-matter  by  construing 
the  words  "judges  of  the  several  courts"  distributively,  as  de- 
scriptive of  the  respective  judges  who  then  had  the  appointing 
power.  The  committee  adopt  this  as  the  reasonable  construction. 
The  question  was  necessaril}'  passed  on  by  the  supreme  judicial 
court  in  making  the  appointments  of  Mr.  (xriffin  and  Mr.  Dana, 
and  we  have  their  determination  of  it  in  the  certificates  of  appoint- 
ment, copies  of  which  are  hereto  annexed. 

Mr.  Griffin's  ap[)ointment  was  then  a  valid  appointment. 

IV.  The  provision  of  the  Constitution  applical)le  to  the  facts,  as 
;i,bove  established,  admits,  in  the  judgment  of  the  committee,  of 
no  question  as  to  what  is  their  legal  effect.  It  plainly  prohibits 
any  person  holding  the  office  of  clerk  from  being  admitted  to  a  seat 
in  this  iiouse,  and  it  as  plainly  prohibits  any  person,  who  has  been 
admitted  to  and  holds  a  seat  here,  from  retaining  such  seat  after 
he  has  accepted  an  appointment  to  the  office  of  clerk.  The  fact  of 
ap[)ointment  and  acceptance  alone  is  declared  to  operate  a  resig- 
nation and  vacate  his  place.     Investiture  as  clerk  shall  divest  him 


78  MASSACIIUSKTTS    ELECTION    CASKS 1S53-1885. 

of  iiR-mbLMsliip.     This  is  the  phiin  meaiiiug  of  the  Constitution,  and 
so  it  has  been  oftt-n  resolved  by  this  house. 

In  l«l.s,  in  Stearns'  ease  (Rep.  Elec.  Ca.,  Gushing,  S.  «fe  J., 
•Jl  7 ) ,  it  appearing  that  a  qualified  member  of  the  house  had,  in  the 
reres's,  accepted  the  office  of  University  Professor  of  Law  in  Har- 
vard College,  the  house  determined,  on  the  report  of  an  able  com- 
mittee, by  a  vote  of  71  to  12,  '•  that,  by  the  acceptanc'e  of  the  office 
of  University  Professor  of  Law,  the  seat  of  Asahel  Stearns,  Esq., 
ill  the  house  of  representatives,  became  vacated  ;  and  that  notice 
thereof  be  sent  to  the 'town  of  Charlestown,  to  fill  up  the  vacancy, 
if  the  inhabitants  thereof  see  fit  so  to  do." 

In  1828,  in  Adams'  case  (Rep.  Elec.  Ca.,  Gushing,  S.  &  J.,  251), 
it  being  proved  that  a  qualified  member  had,  from  the  close  of  the 
first  session  to  the  commencement  of  the  second  session,  in  fact 
performed  the  duties  of  a  deputy  collector  of  the  customs  under  the 
Lulled  Slates,  there  being  no  evidence  of  an  appointment  to  saiil 
office,  the  house  determined,  on  a  direct  vote  of  88  to  71,  and  on  a 
motion  to  reconsider  by  a  vote  of  126  to  75,  "that  the  acts  and 
doings  of  Mr.  Adams  are  prmia  facie  evidence  that  from  June  last 
to  the  third  day  of  January  last,  inclusive,  he  had  held  the  office  of 
deputy  collector  of  the  district  of  Marblehead  and  Lynn,  and  that 
holding  said  office  under  the  authority  of  the  United  States  is 
incomputil)le  with  a  right  to  a  seat ;  and  they  do  accordingly  report, 
that  William  B.  Adams  of  Marblehead,  is  not  entitled  to  a  seat  in 
this  House." 

A  motion,  directing  the  committee  on  the  pay  loll  to  make  up 
the  pay  of  Mr.  Adams,  for  his  travel  and  attendance  as  a  member, 
being  made  and  considered,  was  decided  in  the  negative. 

At  a  subsequent  legislature,  Januar}'  14,  1831,  Mr.  Adams  peti- 
tioned for  an  allowance  of  pay,  as  a  member,  until  his  seat  was 
vacateii.  The  committee  on  elections  reported  a  Resolve  in  his 
favor,  which  was  rejected  by  the  house. 

The  resignation  of  au  office  which  has  been  once  accepted  and 
has  wrought  thereby  an  exclusion,  inasmuch  as  it  does  not  alter 
tlie  facts  of  appointment  and  acceptance,  cannot  remove  the  legal 
consequence  fixed  by  the  Constitution.  Thus,  while  a  distinction 
has  been  made  between  ineligibility  and  disqualification  before  a 
member  elect  has  been  admitted  to  a  seat,  and  it  has  been  held 
that  he  may  resign  a  disqualifying  office  and  be  admitted,  it  is 
further  held  that  no  such  distinction  exists  in  the  case  of  a  mem- 
ber once  seated,  and  who  afterwards  accepts  such  office,  but  that 
llierrupon  liis  scut  is  vacated.  Gush.  Law  and  Prac,  Legis.  Ass., 
par.  7.S,  p.  31,  par.  478,  p.  195. 


IN    I!E    (iinFFIK.       riotTSE,    1859.  79 

Tho  ie(]iiireraent  of  the  Constitution  is,  "that  the  place  so 
vacated  shall  be  filled  up."  As  this  can  be  done  only  by  an  elec- 
tion by  order  of  the  House,  if  the  vacancy  occurs  in  the  recess,  it 
l)oeomes  its  dut}',  when  in  session,  upon  the  facts  being  ascer- 
tained, to  raake  the  necessary  order  therefor. 

The  committee  are  therefore  of  opinion  and  do  report  that,  by 
tlie  acceptance  of  the  office  of  clerk  of  the  supreme  judicial  court, 
court  of  connnon  pleas,  and  of  the  county  commissioners  of  the 
county  of  Middlesex,  the  seat  of  John  Q.  A.  Griffin,  Ksq.,  in  the 
House  of  Representatives,  l)ecame  vacated  ;  and  that  notice  thereof 
be  sent  to  the  town  of  Maiden,  constituting  the  fourth  representa- 
tive district  of  Middlesex  County,  to  fill  up  the  vacancy,  if  the 
inhabitants  thereof  see  fit  so  to  do. 

[The  report  of  the  committee  was  rejected  by  the  house  by  a 
vote  of  T)!)  yeas  to  69  nays.  Reconsideration  of  the  vote  was  after- 
wards refused  by  a  vote  of  78  yeas  to  94  nays.  Notwithstanding 
the  action  of  the  house,  the  report  is  published  by  the  editors  as 
correct,  and  valuable  as  a  precedent.] 


80  MASSAClirsKTTS    ELECTION   CASES  —  1853-1885. 


S  E  N  A  T  E  —  1  8  G  0 . 


W II, I, I  AM    H.  Knowlton  v.  Thomas  Rice, 

Hull.  Ai.viN  C V.  lion.  William  Claflin,  Hon.  Thomas  T.  Rich.  Hon. 

DkxtkuF.  Paiikkk  and  Hon.  Gkougk  L.  1)a\is,  S/x't-iul  ComiaiUre. 

Scnalc  Docnnient,  No.  70.     F('l)niaiT  21.  ISCO.     Report  by  Messrs.  Claf- 
Li.N.  Taiikki:  and  Davis,  Messrs.  Cook  and  Rich  dissentina;. 

Vacancy  in  Senate.  Mode  of  filling.  Where  a  vacancy  occurred  in  the  Senate 
liy  resis^iintioii  to  be  tilled  under  the  former  provision  of  the  Constitution  (Art.  IV., 
seel.  '2,  chap.  1)  that  the  Senate  and  House  shouki  take  the  names  of  such  persons 
as  should  he  found  to  have  received  the  highest  nuudjer  of  votes  in  the  district,  and 
not  elected,  amountinir  to  twice  the  number  of  senators  wanted,  if  there  be  so  many 
voted  for,  and  out  of  tliese  nialce  an  election,  it  was  held  that  it  was  proper  to  omit 
frniu  tlic  list  of  such  names  a  candidate,  who,  altliougli  eligible  at  the  time  of  the 
!{cnernl  election,  had  become  ineligible;  and  to  add  to  such  list  the  names  of  per- 
sons who  received  the  same  nnnd)cr  of  votes  although  by  such  addition,  the  list  will 
contain  more  than  twice  the  number  of  senators  wanted. 

V^otrs  for  ineligible  candidates.  Votes  cast  in  a  convention  of  Senate  and  House 
for  the  election  of  a  senator,  for  a  person  not  constitutionally  eligible  to  election, 
nmnot  be  regarded  as  l)ianks,  so  as  to  elect  the  person  receiving  the  next  highest 
number  of  votes. 

Tlie  Special  Committee  on  Elections,  to  whom  was  referred  the 
IM'tition  of  William  H.  Knowlton  of  Shrewsl)ury,  praying  that  he 
may  be  declared  entitled  to  the  seat  now  occupied  by  Thomas 
Rice,  who  was  elected  in  joint  convention  January  2r)tli,  beg 
leave  to  report  that  agreeably  to  the  duties  assigned  them,  they 
met  on  Wednesday,  February  16th,  to  hear  the  parties  in  the  case, 
at  which  time  tiie  chairman  of  the  committee  informed  us  that  the 
petitioner  would  not  aj^pear,  but  would  rest  his  case  on  the  rea- 
sons set  forth  in  his  pi^tition  ;  and  we  will  here  add  that  no  official 
notice  has  ever  been  served  on  Mr.  Rice,  informing  him  that  the 
petitioner  claims  his  seat,  and  he  did  not  appear  before  us.  We 
may,  therefore,  say  that  the  case  is  really  submitted  ui)on  an 
agreed  sialement  of  facts  by  both  parties,  to  wit :  that,  by  a  resig- 
tiat.ion  of  a  senator,  a  vacancy  existed  in  the  Worcester  east 
^(•naU>rial  di.strict ;  that  a  committee  of  the  senate,  to  select  the 


KNOWLTON   V.    EICE.       SENATE,    1860.  81 

constitutional  candidates  to  be  voted  for  to  fill  the  vacancy, 
reported  that  WilUam  H.  Knowlton  was  one  of  said  candidates  ; 
that  Horace  Faulkner,  of  Bolton,  would  have  been  the  second,  but 
he  was  ineligible  to  the  office,  having  removed  from  the  district, 
and  therefore  they  reported  as  the  next  highest  candidate  voted  for 
and  not  elected,  Thomas  Rice  and  Jeduthan  Dadmun,  they  having 
the  same  number  of  votes,  viz.,  two  each ;  which  report  was  unan- 
imously accepted,  and,  as  the  result  of  it,  in  a  joint  convention 
Thomas  Rice  was  chosen  senator,  hex'eceiving  111  votes  of  the  219 
cast.  The  petitioner  now  claims  that  his  and  Horace  Faulkner's 
names  onl}^  should  have  been  returned,  and  that  Thomas  Rice  was 
not  eligible  as  a  candidate  ;  therefore  the  votes  cast  for  him  were 
tlirown  away,  and  he  (the  petitioner)  was  elected  by  receiving  106 
votes  out  of  the  219  cast,  rejecting  the  HI  cast  for  Rice,  which 
were  null  and  void  and  ought  not  to  have  been  counted  ;  but  that 
the  petitioner,  receiving  106  votes,  should  have  been  declared  to 
have  been  elected,  and  therefore  he  claims  and  asks  the  senate  to 
give  him  the  seat  now  held  by  said  Rice. 

Such,  in  brief,  is  the  prayer  of  the  petitioner ;  and  while,  by  the 
recently  proposed  amendment  to  the  Constitution,  which  has  now 
been  adopted  b}"  the  legislature,  and  will  undoubtedly  be  approved 
of  by  the  people,  these  vacancies  in  future  will  be  filled  by  the 
people  themselves,  still  we  admit  that  though  another  such  case 
may  not  ever  occur,  that  the  subject  should  be  most  carefully 
investigated ;  and  if  the  petitioner  has  been  deprived  of  his  rights, 
the  senate,  as  it  is  in  their  power  to  do,  should  be  prompt  and 
ready  to  restore  them.  Impressed  with  these  views,  we  have 
examined  critically  the  records  of  the  senate  from  the  establish- 
ment of  our  Constitution  to  the  present  time,  in  regard  to  the  man- 
ner of  the  senate's  selecting  constitutional  candidates  to  fill  any 
vacancies  that  might  occur,  the  method  of  electing  them,  and  the 
power  of  the  legislature  over  the  entire  matter  of  vacancies  in  the 
senate.  By  reference  to  the  senate  Journal,  October  26,  1780, 
it  will  be  seen  that  they  voted  that  in  filling  "vacancies  in  the 
senate  both  houses  vote  in  one  room  in  order  to  render  the  elec- 
tions most  harmonious,"  and  that  is  the  custom  to-day ;  but  in 
regard  to  the  selection  of  candidates  for  said  vacancies,  we  find, 
senate  Journal,  page  7,  1781-82,  a  message  is  received  from  the 
house  saying  that  they  have 

^'■Ordered,  That  Mr.  Lowell  and  Mr.  Fessenden  be  a  committee, 
with  such  as  the  honorable  senate  shall  join,  to  examine  and  make 
report  who  are  candidates  to  fill  up  the  vacancies  in  the  honorable 
senate,  and  the  senate  concurs,  and  A.  E.  Fuller  is  joined. 


82  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

This  is  tlie  6rst  and  the  or.ly  case  in  which  the  senate  allowed 
the  bouse  to  join  them  in  selecting  constitutional  candidates  to  fill 
the  vacancies  that  occurred  in  their  own  body  ;  so  that  for  seventy- 
nine  years  this  power  has  been  exercised  by  the  senate  solely  and 
alone,  so  tliat  to-day  its  right  to  do  so  and  its  power  to  declare 
who  such  constitutional  candidates  are,  cannot  be  disputed.  Now, 
let  us  ask  who  are  the  candidates  to  be?  We  answer,  "  such  per- 
sons as  shall  be  found  to  have  the  highest  number  of  votes  in  such 
district,  and  not  elected,  amounting  to  twice  the  number  wanting, 
if  there  be  so  many  voted  for,"  (Sect  2d,  art.  4th,  Const.)  Now, 
supposing  there  are  two  vacancies  and  five  persons  have  the  high- 
est number,  what  is  to  be  done?  Shall  five  names  be  reported,  or 
shall  the  two  who  are  tied  be  rejected,  and  thus  only  three  names 
be  returned?  Happily  for  us,  this  point  was  settled  in  the  early 
days  of  our  Constitution.  Turn  to  Senate  Journal,  page  5,  1794, 
and  it  will  be  seen  that  Cumberland  County  (now  in  Maine)  made 
no  choice  b}'  the  people,  and  two  vacancies  therefore  existed,  and 
the  senate  reported  "that  the  constitutional  candidates  are" 

Daniel  ^litchell,  who  had    ....  456  votes. 

Wni.  Widgey, 443      " 

Stephen  Longfellow, 281      " 

Joseph  Thacher, 245      " 

John  Gushing, 245      " 

which  report  was  accepted,  and  in  joint  convention  William  Wid- 
gey  and  Stephen  Longfellow  were  elected,  though  Mitchell  had  the 
most  votes  at  the  hands  of  the  people.  So  also  in  1848,  George 
P.  Bigelow  of  SuflTolk  resigned  his  seat  in  the  senate,  March 
27th,  and  Messrs.  Eustis,  Blake  and  Bradley  were  appointed  a 
committee  to  report  the  constitutional  candidates  to  fill  the  vacancy, 
and  March  3Uth    (Senate  Journal,  page  430)  they   reported  ^'  that 

James  Cheever  had         ....      2,963  votes. 

John  Prince,  2,953      " 

Isaac  Adams,  ...  .2  953      " 

and  they  are  the  con.stitutional  candidates."  The  report  (Senate 
Document  101,  1848)  was  accepted,  then  reconsidered,  laid  on  the 
table,  and  April  4th  adopted  ;  and  in  joint  convention  Isaac  Ad- 
ams was  chosen,  though  he  had,  in  the  popular  election,  less 
votes  tbi.a  Cheever.  In  1857  Hon.  James  Robinson  resigned  his 
seat  as  a  senator  from  Berkshire,  and  the  committee  to  select  con- 
stitutional candidates  reported  that  James  Bowerman  had  1,4  71 
votes,  and  three  other  persons  had  one  each,  all  of  whose,  names 


ItXOWLTON   V.    RICE.       SEJTATE,    1860.  83 

the}'  reported,  which  was  nnanimouslj'  accepted,  acted  on  hi  con- 
vention, and  James  Bowerman  was  chosen.  These  cases  are  rare 
of  equaUty  of  votes,  the  first  occnrring  in  1784,  when  the  two  con- 
stitutional candidates  had  ten  votes  each;  the  next  case  in  1785 
(Senate  Journal,  page  4),  when  there  were  four  vacancies  in 
Hampshire  Count}',  and  of  the  eight  constitutional  candidates  two 
had  265  each,  and  the  others  305,  160,  326,  132,  170  and  171 
each,  and  those  having  326,  170,  305,  and  one  of  those  with  265 
votes,  were  elected  in  joint  convention.  Aside  from  these  two 
cases  and  the  three  cited  before,  we  believe  that  no  other  case  of 
this  nature  has  occurred,  as  regards  candidates  for  vacancies, 
while  from  1780  to  1857,  of  all  the  senators  chosen  in  that  time, 
but  twent\"-three  cases  have  occurred  that  any  two  have  had  the 
same  number  of  votes.  We  have  mentioned  these  facts,  and  cited 
these  earl}-  and  later  precedents,  to  show  (what  may  be  denied) 
that  if  Faulkner  was  not  eligible  and  could  not  be  returned  as  one 
of  the  constitutional  candidates,  that  the  senate  did  riglit  in 
reporting  three  names  for  one  vacanc}' ,  because  it  was  not  only  a 
common-sense  interpretation  of  the  Constitution,  but  it  was  a 
course  sanctioned  by  precedents  of  the  early  and  more  recent  times 
of  our  legislative  history.  We  now  come  to  the  main  point  relied 
on  b}'  the  petitioner  as  entitling  him  to  Mr.  Rice's  seat,  viz.,  that 
Horace  Faulkner  of  Bolton  should  have  been  returned  (he  hav- 
ing five  votes)  as  one  of  the  candidates  with  the  petitioner,  he 
being,  when  the  last  State  election  had  closed,  one  of  the  two 
highest  candidates  not  elected,  and  as  he  was  not  returned, 
Thomas  Rice  was  not  a  constitutional  candidate,  he  having  but 
two  votes ;  therefore  all  the  votes  given  for  Rice  in  the  joint  con- 
vention were  thrown  awa}',  and  consequently  the  106  votes  cast 
for  the  petitioner  did  elect  him,  and  it  should  have  been  so  declared 
in  joint  convention.  This  assumption  of  the  petitioner  raises  two 
points  for  discussion  and  deliberation  :  first,  are  votes  thrown  in  a 
joint  convention  for  a  person  qualified  to  be  a  senator  bj'  age, 
citizenship  and  residence,  to  be  counted  as  blanks  because  his 
opponents  deny  that  he  is  consiilutionall}' eligible  to  the  place? 
and  second,  is  a  person  who  is  eligible  on  the  day  of  election  as 
one  of  the  constitutional  candidates,  in  case  a  vacauc}'  occurs,  to 
be  always  considered  eligible,  despite  any  circumstance  that  ma}' 
occur  after  said  election,  as  affecting  his  character,  citizenship  or 
residence?  Let  us  first  examine  the  question  of  the  right  of  a 
legislative  body  to  reject  bo7ia  fide  votes  given  in  joint  con- 
vention. 

This  question  was  mooted  in  the  house  of  representatives  in 


84  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

184^  (see  House  Journal,  pages  131,  321,  403),  and  on  motion  of 
Kellogg  of  Pittsfield,  it  was  referred  to  the  committee  on  elee- 
tion.s,Tousisting  of  Park  of  Boston,  Russell  of  West  Cambridge, 
Tliouias  of  Charlestown,  Kellogg  of  Pittsfield,  AYilliams  of 
f:aston,  and  Lewis  of  Hingham,  and  in  their  report  on  the  subject 
(Ma^s.  Election  Cases,  Cushing,  S.  &  J.  496)  the}-  declare  that  in 
sucli  conventions  all  votes  are  to  be  counted,  and  are  to  be  considered 
as  being  an  expression  of  the  electors'  dislike  to  the  other  persons 
voted  for,  and  consequently  a  person,  to  be  elected  to  any  office  in 
a  joint  convention,  should  have  a  majority  of  all  the  votes  cast. 
Two  of  the  committee,  Russell  and  Thomas,  dissented  from  this 
report,  but  they  say,  "  As  a  general  principle,  that  all  votes  cast 
at  any  election  by  legal  voters  must  be  counted,  the  undersigned 
readily  admit,"  but  as  the  two  reports  were  not  acted  on,  we  can 
establish  no  precedent  from  that  case,  except  so  far  as  the  names 
of  Walley,  Park  and  Kellogg  can  give  weight  to  the  position  that 
we  are  now  to  contend  for.  If  we  turn  from  our  State  records  to 
Congress,  we  shall  find  (Contested  Elections  in  Congress,  page 
G81,  Washburn  v.  Ripley)  that  all  ballots  are  to  be  counted,  and 
if  from  those  we  turn  to  English  precedents,  we  shall  find  that  the 
rejection  of  the  votes  thrown  for  Rice  cannot  be  justified  for  a 
moment,  even  though  he  might  be  ineligible,  so  that  if  he  is 
declared  not  to  be  constitutionally  eligible,  Knowlton  cannot  be 
declared  to  be  elected,  but  the  seat  is  vacated,  and  a  new  election 
must  take  place. 

Rogers,  in  his  Law  and  Practice  of  Elections,  says  :  "  The  prin- 
ciple upon  which  courts  of  law  have  acted  in  such  cases  (viz., 
votes  thrown  for  ineligible  candidates)  is  broad  and  uniform,  and 
is  thus  laid  down  by  Lord  Ellenborough  {R.  v.  Hawkins,  10  East, 
211),  -The  general  proposition  that  votes  given  for  a  candidate 
after  notice  of  his  being  ineligible,  are  to  be  considered  the  same 
as  if  the  person  had  not  voted  at  all,  is  supported  by  the  case  of 
the  Queen  v.  Boscawen,  E.  T.  13  Anne  ;  the  King  v.  Withers,  E. 
T.  ( i.  2  ;  Taylor  v.  Mayor  of  Bath,  M.  15,  G.  2  ; '"  all  of  which  are 
cited  in  Cooper,  537,  in  King  v.  Manly.  Now,  let  it  be  remarked 
tliut  in  the  Boscawen  case  it  was  a  tie  vote,  and  he  was  proved 
to  be  notoriously  ineligible,  and  Roberts  was  seated.  In  Withers 
case  there  were  but  eleven  votes  in  the  borough,  Jive  only  voted, 
six  refused  to  vote,  and  of  course  Withers  was  declared  elected. 
In  'i'aylor's  case  Rigg  had  14,  Taylor  13,  and  Kingston  1,  and 
Lonl  Chief  Justice  Lee  told  the  jury  "if  they  were  satisfied  that 
the  electors  had  notice  of  Rigg's  disqualification,  they  must  seat 
Taylor,"  and  they  did.     So  in  Claridge  v.  Evelyn  (5  B.  &  A.,  81), 


ILNOWLTON   V.    RICE.       SENATE,    1860.  85 

• 

the  person  voted  for  was  an  infant,  and  notoriously'  ineligible,  and 
the  same  was  the  fact  in  the  Cockermoiith  ease  (18  Jonrn.,  673), 
and  also  in  the  Flintshire  case  (1  Peckwell,  526).  Other  cases 
might  be  cited,  but  we  have  given  enough  to  show  that  133'  the 
judiciall}'  established  rules  of  Parliament  and  courts,  the  disqual- 
ification of  the  party  must  be  a  matter  of  public  notoriety,  as  in 
the  Fife  case,  Ist  Luders,  455  ;  have  been  established  by  law,  as 
in  2d  Southworth,  1st  Clifford,  130  ;  been  publicly  notified  to  the 
electors,  as  in  the  Belfast  case  (Fitzherbert  and  Falconer,  G03)  ; 
or  been  declared  by  eminent  counsel,  as  in  2d  Canterbury  (Clif- 
ford, 353)  ;  but  if  these  steps  were  not  taken,  votes  thrown  for  the 
person  must  be  counted,  as  per  decision  of  court  in  M.  v.  Bridge 
(I  M.  &  S.,  76).  Now  take  each  and  everyone  of  these  decisions 
as  to  the  rejection  of  votes  cast  for  ineligible  candidates,  and  ask 
the  question,  will  a  single  one  of  the  rules  laid  down  in  thera 
apply  to  the  case  of  the  elector  who  voted  for  Mr.  Rice?  We 
unhesitatingly  answer,  no.  That  he  was  of  age,  had  resided  in 
the  State  five  years,  was  a  resident  of  the  district  for  which  he  was 
chosen  at  the  time  of  his  election,  had  no  civil  disabilities  resting 
upon  him,  held  no  offices  incompatible  with  that  of  senator,  even 
the  petitioner  himself  does  not  deny  ;  so  that  every  presumption  of 
eligibilit}',  and  the  declaration  of  the  only  tribunal  that  has  a  con- 
stitutional right  to  pronounce  judgment  in  the  case,  was  in  his 
favor.  Now  let  us  ask  who  had  declared  to  the  electors  in  this 
case  that  Mr.  Rice  not  onl}'  could  be,  but  was,  a  constitutional 
candidate  for  the  office  of  senator?  We  answer,  the  only  branch 
of  the  government  of  the  State  that  for  seventy-nine  years  has 
claimed,  exercised  or  possessed  the  right  to  do  so,  viz.,  the  Senate 
of  Massachusetts. 

The  report  that  said  he  was  a  constitutional  candidate  was 
adopted  unanimously  by  that  body,  without  even  one  word  of  dis- 
sent, and  their  judgment  was  affirmed,  after  full  discussion,  by 
both  branches  of  the  legislature,  who,  in  convention,  bj'  a  vote  of 
113  out  of  219,  declared  that  they  did  not  want  William  H.  Kuowl- 
ton  for  senator,  but  b}'  a  vote  of  110  out  of  219,  did  declare  that 
they  believed  Thomas  Rice  to  be  a  constitutional  candidate ;  that 
they  wished  him  for  a  senator,  and  declared  him  elected,  thus 
making  twice  that  the  petitioner  has  been  refused  the  place  he  now 
asks  for,  viz.,  once  by  the  people  of  his  own  district,  by  fourteen 
hundred  votes,  and  once  by  a  joint  convention  of  the  representa- 
tives of  the  people  of  the  whole  State.  Surely  if  Mr.  Rice  is  not 
entitled  to  his  seat,  Mr.  Knowlton  cannot,  b}^  any  rule  of  law,  or 
in  equity  or  justice,  have  a  title  to  it.     Does  he  deny  that  Mr.  Rice 


8G  MASSACHUSETTS   ELECTIOX   CASES — 1853-1885. 

was  not  broimlil  furward  in  good  faith  by  the  senate  as  a  constitu- 
tional candidate,  and  voted  for  as  such?  The  petitioner  does  not 
and  dares  not  alllrm  this ;  he  does  not  even  charge  any  civil  or 
legal  disqualiflcation  in  the  sitting  senator,  3-et  he  contends  that 
every  vote  thrown  for  Thomas  Rice  was  a  nullity,  and  therefore  lie 
is  elected. 

No  legislative  body  calling  itself  constitutional  ever  indorsed 
such  a  monstrous  proposition,  save  that  House  of  Commons  that 
gave  Wilkes'  seat  to  Luttrell,  an  act  so  subversive  of  even  English 
lil)crlies,  that  a  succeeding  House  of  Commons,  in  1781,  expunged 
ihe  record  of  the  vote  from  its  journals.  Is  republican  Massachu- 
setts to  imitate  an  example  set  them  by  the  servile  courtiers  of 
George  HI?  Does  the  petitioner  covet  the  honor,  and  is  he  to  be 
the  Luttrell  of  the  Senate?  If  so,  well  may  the  people  pray  for 
another  Junius. 

Let  us  now  examine  the  second  proposition  of  the  petitioner, 
viz  ,  that  as  Mr.  Faulkner  was  voted  for  on  election  day  and  was 
made  a  constitutional  candidate  by  the  electors  of  that  district  at 
that  time,  the  Senate  must  still  consider  him  as  a  candidate  even 
though  they  know  he  is  not  eligible  if  he  should  happen  to  be 
elected.  The  fallacy  of  this  proposition  hardly  deserves  an  argu- 
ment, and  its  absurdity  can  be  shown  in  a  sentence.  Suppose  (as 
was  formerly  the  case)  "Worcester  Co'inty  could  elect  on  a  single 
ticket  four  senators,  but  by  operation  of  the  majority'  rule,  there 
being  three  parties  in  the  field,  no  choice  was  made,  but  four  had 
600  votes,  four  499,  and  four  others  498.  In  this  state  of  thinus, 
on  the  eve  of  the  election  the  eight  having  500  and  499  votes  are 
the  constitutional  candidates  to  fill  the  vacancy  ;  but  before  the  leg- 
islature meets,  t!u-ee  of  the  highest  candidates  remove  from  the 
State  and  cannot  be  found,  two  are  convicted  of  infamous  offences, 
three  accept  offices  that  disqualify  them  for  being  senator.  Must 
all  tliose  men  under  that  state  of  things  be  reported  and  voted  for 
as  coustilutioul  candidates  when  every  one  of  them  is  known  to 
be  ineligible?  If  so,  we  ask  who  will  be  elected,  for  the  petitioner 
contends  that  votes  thrown  for  ineligible  candidates  are  votes 
thrown  away.  If  this  doctrine  be  true,  who  is  to  fill  the  vacancies? 
Who  is  to  claim  the  right  to  the  seats  on  the  same  ground  that  the 
petitioner  rests  his  claim  to  Mr.  Rice's  seat?  The  result  would  be, 
if  tlic  petitioner's  doctrine  were  true,  that  the  county  would  have 
no  senators  at  all,  and  would  be  practically  disfranchised.  Such 
a  stale  of  affairs  could  not  be  even  supposed,  and  all  must  admit 
that  if  by  any  reason,  by  death  or  otherwise,  one  of  those  who 
were  the  constitutional  candidates  on  the  dav  after  election  should 


KXOWLTON    V.    RICE.       SENATE,    1860.  87 

afterwards  become  ineligible  to  the  office  of  senator,  one  of  those 
having  the  smaller  number  of  votes  must  be  taken. 

This  is  also  the  voice  of  the  Massachusetts  General  Court.  At 
the  State  election  in  1852  Essex  County  failed  to  elect  its  five 
senators  under  the  raajoritj'  rule,  and  on  the  day  after  the  election 
the  constitutional  candidates  were  Albert  Currier,  who  had  8,456 
votes  ;  Dan  Weed,  5,827  ;  James  M.  Sargeant,  8,444  ;  C.  D.  Hack- 
ings, 7,961  ;  Micajah  Lunt,  7,714  ;  Thomas  Wright,  7,532  ;  Henry 
Russell,  7,519;  Alfred  Abbot,  7,597;  N.  S.  Hoar,  7,390;  Elisha 
Mack,  8,113.  The  legislature  met  in  January.  A  committee  of  the 
senate  reported  the  above  names  as  the  constitutional  candidates 
to  fill  said  vacancies,  sent  them  to  the  house,  and  January-  10th 
both  branches  met  in  convention  to  fill  the  vacancies  ;  and  before 
proceeding  to  vote,  the  question  was  asked  by  Gen.  Butler  of  Low- 
ell, whether  the  candidates  heretofore  reported  for  the  district  of 
Essex  w^ere  the  constitutional  candidates.  (Senate  Journal,  1853, 
page  20.)  It  then  appeared  that  Elisha  Mack  had  been  dead 
for  some  time.  What  did  the  convention  do?  Vote  for  a  dead 
man,  because  he  was  a  constitutional  candidate  on  the  da}^  of  the 
State  election?  Not  at  all;  the  convention  was  dissolved,  the 
report  was  recommitted,  and  the  same  day  the  senate  committee 
report  "•  that  they  have  ascertained  that  Elisha  Mack,  one  of  the  ten 
persons  named  as  having  the  highest  number  of  votes  in  the  dis- 
trict of  Essex,  was  dead,  and  that  Dan  Weed,  Jr.,  has  the  next 
highest  number  (some  2,800)  of  votes  for  senator."  After  the 
person  named  in  their  former  report,  and  this  report  was  accepted, 
his  name  was  reported  to  the  joint  convention,  he  was  voted  for 
and  received  the  same  number  of  votes  as  did  five  others, — viz.,  124, 
while  five  others  received  154.  This  precedent,  so  recent  and  so 
common-sense  like,  decides  the  case  of  Faulkner,  and  as  Elisha 
Mack  died  a  bodily  death,  prior  to  the  time  that  he  could  be 
elected  a  senator,  and  even  ceased  to  be  a  constitutional  candi- 
date, so  Horace  Faulkner,  by  removing  from  Bolton  to  L3'nn, 
became  in  the  eyes  of  the  law  a  dead  man,  and  he  could  not  be  a 
constitutional  candidate  for  senator,  because  if  elected  he  could 
not  take  his  seat,  because  the  Constitution  declares  that  every 
senator,  when  he  is  chosen,  shall  be  an  inhabitant  of  the  district 
that  he  is  chosen  to  represent.  (Art.  22,  amendment  to  Constitu-. 
tion.)  Therefore  Thomas  Rice  was  rightfully  reported  as  one  of 
the  constitutional  candidates,  and  his  election  is  legal,  valid  and 
constitutional.  We  might  go  further  and  assert  that  as  he  pos- 
sesses ever}'  requisite  qualification  for  senator,  the  fact  of  a  joint 
convention  electing  him,  by  the  assent  of  the  senate  he  could  hold 


88  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

his  scat,  as  in  case  of  the  Berkshire  senators  (Sen.  Jour.,  1795, 
p.  30,  40),  where  the  legislature  in  convention  "proceeded  to  the 
election  at  large,  no  particular  candidates  being  named,  and  made 
choice  of  Hon.  John  Bacon  and  Thompson  J.  Skinner. "  Their 
seats  were  never  contested,  because  in  their  election  the  will  of  the 
people  was  carried  out,  and  their  sentiments  and  opinions  on  pub- 
lic policy  were  represented  by  them.  But  we  need  no  such  excep- 
tional case  to  sustain  the  action  of  the  legislature  in  electing  Thomas 
Rice  to  his  seat,  for  its  right  to  do  so  is  supported  by  reason,  usage 
and  practice,  and  is  in  perfect  keeping  with  the  spirit  of  our  Con- 
stitution and  the  equit}-  of  our  laws.  We  therefore,  for  the  reasons 
herewith  given,  reix)rt  that  the  petitioner  have  leave  to  withdraw. 

[A  minority  report  was  made  by  Hon.  Alvin  Cook  and  Hon. 
Thomas  P.  Rich,  but  the  majority  report  was  accepted  by  the  Sen- 
ate (S.  J.  18G0,  pp.  423,  424)  and  Mr.  Rice  was  confirmed  in  his 
«eat.] 


BEAN   V.    TUCKER.      HOUSE,    1860.  89 


HOUSE  — COMMITTEE   ON  ELECTIONS,    1860. 

Messrs.  Gustavus  Attwill  of  Lynn,  Chairman;  Richard  Bliss  of 
Springfield,  James  H.  Barker  of  Milford,  Hiram  A.  Pratt  of  Easton, 
Abijah  Ellis  of  Boston,  Warren  Ordway  of  Bradford,  and  Merritt 
Nash  of  Abington. 


Nicholas  J.  Bean  v.  John  C.  Tucker. 

House  Document,  No.  25.     January  24,  1860.     Report  by  Gustavus  Att- 
will, Chairman. 

Counting  Votes.  Recount  by  Ward  Officers  after  Exposure  of  Ballots  entitled  to 
no  Weight.  Where  the  votes  were  counted  every  hour  during  the  election  by  the 
warden,  who  did  not  submit  every  parcel  of  votes  to  the  ward  clerk  for  recount,  and 
did  not  do  the  figuring,  but  left  it  entirely  with  the  clerk  to  enter  upon  the  record 
the  number  counted  in  the  different  parcels,  and  after  the  polls  closed  took  the  votes 
home,  leaving  them  in  a  room  with  several  persons  for  ten  minutes  while  he  was 
away,  and  afterwards  tying  them  up  in  bundles  and  putting  them  in  a  basket,  and 
taking  the  basket  to  a  store,  where  it  was  left  twenty  minutes,  and  afterwards  taking 
it  home,  and  an  hour  later  at  home,  in  presence  of  some  of  the  ward  officers  and 
other  persons,  recounting  the  votes  for  representative,  —  the  recount  changing  the 
result  and  showing  that  the  petitioner  was  elected,  —  it  was  held,  although  a  recount 
by  the  committee  confirmed  the  second  count  by  the  warden,  —  the  first  count  and 
declaration  at  the  polls  must  stand  as  the  true  result,  and  the  petitioner  was  given 
leave  to  withdraw. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Nicholas  J.  Bean,  controverting  the  right  to  a  seat  in  this 
.house  of  John  C.  Tucker,  would  report  as  follows :  The  petitioner 
represents  that  John  C.  Tucker,  of  ward  three,  in  the  city  of 
Boston,  to  whom  a  certificate  of  election  from  that  ward  to  this 
house  was  given,  was  not  legally  elected,  and  is  not  entitled  to  the 
seat  he  occupies ;  that  the  said  Bean  received  a  pluralitj'  of  votes 
over  the  said  John  C.  Tucker,  and  was  entitled  to  a  certificate  of 
election. 

The  facts  relied  upon  to  sustain  the  allegations  contained  in  the 
aforesaid  petition  were  as  follows  :  — 

That  a  mistake  was  made  in  the  count  at  the  election  on  the  8th 
of  November,  as  declared  at  the  close  of  the  polls  ;  and  that  a  new 
count  was  requested,  and  was  had  at  the  house  of  the  warden,  at 
which  count  it  was  found  that  the  petitioner  had  a  plurality  of  eight 
votes  over  John  C.  Tucker. 


90  MASSACHUSETTS   ELECTION    CASES 1853-1885. 

The  committee  do  not  note  upon  the  earlier  proceedings  of  the 
election  iu  ward  three,  except  to  say,  from  evidence,  that  it  ap- 
peared conclusively  that  the  proceedings  in  regard  to  the  count  of 
votes  were  done  in  a  loose  and  careless  manner,  although  as  usually 
done.     A  count  of  votes  was  made  about  every  hour  in  the  day. 

The  warden  did  not  submit  every  parcel  of  votes  for  a  recount 
to  the  ck-rk.  Also  it  appeared  that  the  warden  did  not  do  his  own 
figurinir,  but  left  it  entirely  with  the  clerk  to  enter  the  number 
counted  in  the  different  piles  during  the  day  upon  the  record.  It 
was  shown  in  evidence  that  in  the  different  counts  announced 
during  the  day,  John  C.  Tucker  was  invariably  ahead.  It  was 
thouglit  by  the  friends  of  Mr.  Bean  tliat  a  reserve  which  was 
brouglit  up  at  nearly  the  close  of  the  polls  was  more  than  enough 
to  overcome  tlie  small  pluralit\'  before  announced  for  Mr.  Tucker, 
On  this  supposition  the  friends  of  Mr.  Bean  requested  a  new  count 
after  the  vote  was  declared,  which  was  not  acceded  to  at  the  time, 
but  was  had  at  the  warden's  house  in  the  evening.  It  seems  that  a 
custom  prevails  in  Boston  of  preserving  votes  bj^  the  warden  for  the 
purpose  of  a  recount,  if  ever  necessarj^,  or  for  some  other  purpose 
not  known  to  the  committee. 

For  the  history  of  the  transfer  of  the  votes  to  the  house  of  the 
warden,  and  the  count  in  the  evening,  the  committee  would  here 
introduce  the  testimony  of  the  warden  iu  regard  to  this  matter :  — 

After  each  count,  passed  votes  into  the  drawer  ;  took  the  votes 
home  that  evening ;  after  polls  were  closed  and  result  declared, 
went  up  stairs  to  get  some  refreshment ;  stayed  up  stairs  about  ten 
minutes  ;  hurried  down  to  tie  up  the  ballots  ;  when  I  went  up  stairs 
k-a  the  room  in  cliarge  of  Pattee,  Smith,  Hall,  and  Russell ;  took 
the  votes  up  stairs,  and  put  them  in  a  basket  with  plates,  etc.  ; 
went  in  at  Merrimack  House  ;  put  basket  on  floor  ;  not  out  of  sight ; 
went  to  Mr.  Smith's  store,  but  not  into  the  bar-room  back  ;  made  a 
short  stay  ;  left  the  basket  in  Smith's  store,  on  or  behind  a  barrel ; 
considered  votes  as  safe  as  when  on  my  arm  ;  absent  about  twenty 
minutes;  carried  basket  home  and  set  it  down  iu  tlie  entry;  had 
no  reason  to  suppose  the  votes  could  be  changed  ;  votes  were  all 
tied  in  binidles  at  the  hall,  and  found  so  when  at  home  ;  had  the 
second  count  about  one  hour  after  I  returned  ;  the  votes  did  not 
agree  with  the  first  count,  which  is  as  follows  :  — 

First  Count. 

f':ilclj  Barker, 258 

John  C.  Tucker, 264 

Nicholas  J.  liean, 255 

Horace  Poland, 249 


BEAN   V.    TUCKER.      HOUSE,    1860.  01 

Second  Count. 


Caleb  Barker, 
John  C.  Tucker, 
Nicholas  J.  Bean, 
Horace  Poland, 


266 
255 
263 
244 


At  the  second  count  were  present  Messrs.  Hall  and  Pattee  and 
myself,  who  are  ward  officers  ;  also  Johnson,  Talbot  and  Hanson, 
who  are  not  officers.  No  one  said  to  me  there  was  an  error  in  the 
fust  count ;  was  satisfied  there  was  an  error  somewhere  after  the 
second  count;  waited  until  all  had  come  who  were  invited,  before 
we  commenced  counting ;  an}^  one  could  have  altered  the  result 
dishonorabl}^  at  my  house,  if  so  disposed  ;  I  was  satisfied  myself 
that  the  count  at  my  house  was  right ;  always  counted  them  at  my 
house,  and  have  never  found  a  discrepancy  before  ;  might  have 
been  an  error  at  the  polls  ;  don't  think  the  votes  were  altered  in 
basket.  [The  testimony  of  the  inspectors  disagrees  with  that  of  the 
warden,  in  so  far  as  to  say  that  the  votes  were  on  the  table  at  Mr. 
Mahan's,  when  they  came  in.]  Don't  think  the  count  at  the  house 
of  any  importance  ;  think  the  votes  were  counted  right,  and  declared 
right  at  the  polls. 

Your  committee  have  made  a   second   count   of  the   votes    for 

governor,  and  find  the  result  as  follows,  compared  with  the  first 

count  at  the  polls  :  — 

First   Count. 

B.  F.  Butler, 460 

G.  N.  Briggs, 59 

N.  P.  Banks, 176 

696 
Second  Count. 

B.  F.  Butler 460 

G.  N.  Briggs, 60 

N.  P.  Banks, 180 


700 

The  committee  have  also  made  another  count  of  the  votes  for 
representatives,  which  presents  the  following  result  compared  with 
the  second  count  at  the  warden's  house  :  — 

Second  Count,  at  Mahmi's. 

John  C.  Tucker, 255 

Horace  Poland, 244 

Caleb  Barker 266 

N.J.  Bean, 263 


92  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

Third  Count,  at  State  House. 


J.  C.  Tucker, 
H.  rolancl, 
C.  Barker, 
N.  J.  Bean, 
S.  Adams, 
Chase, 


255 
244 
266 
263 
179 
175 


Your  committee  refer  all  the  facts  herein  set  forth,  for  tlie  con- 
sideration of  the  house,  with  the  report  that  the  petitioner  have 
leaA'e  to  withdraw. 

[The  report  of  the  committee  was  accepted.    H.  J  1860,  p.  158.] 


Samuel  H.  Pierce  v.  Simon  Brown. 

House  Document,  No.  33.  January  30,  1860.  Majority  report  by  Messrs. 
Attwiij.,  Ellis,  Bliss  and  Nash;  — Minority  report  by  Messrs.  Pkatt, 
Oruway  and  Bauker. 

Qualification  of  Voter.  Residence.  A  person,  who  had  lived  and  voted  in 
Weston,  acting  as  teller  in  a  bank  in  Waltham,  married  in  Weston  in  June  preced- 
ing the  election,  and  boarded  there  with  his  father-in-law  until  the  week  of  the 
election.  During  the  summer  he  had  agreed  to  take  a  house  in  Waltham  when 
completed,  l)ut  for  no  definite  length  of  time,  the  house  to  be  ready  in  October  or 
November.  Upon  the  completion  of  the  house  in  November,  he  began  moving  into 
it  on  Thursdny  and  Friday  before  the  election,  and,  with  his  wife,  spent  the  night 
there,  and  also  the  night  of  the  election.  He  intended  to  reserve  the  right  of  voting 
In  Weston,  and  left  some  clothing  and  furniture  there,  and  got  his  provisions  and 
hii.l  his  washing  done  there,  until  after  the  election.  He  had  an  understanding  with 
his  father-in-law  that  he  could  return  to  Weston  whenever  he  desired,  and  should 
make  it  his  summer  residence,  and  never  had  any  definite  intention  of  making  a  per- 
manent residrnce  In  Waltham.  It  was  held  by  a  majority  of  the  committee  (four), 
that  at  the  time  of  the  election  he  resided  in  Weston,  and  was  qualified  to  vote 
there,  —and  by  the  minority  of  the  committee  (three),  that  he  had  removed  his  resi- 
dence to  Wuithum,  and  was  not  qualified  to  vote  in  Weston. 

The  Committee  on  Elections,  to  whom  was  referred  the  remon- 
strance of  Samuel  H.  Pierce  and  others,  of  the  tenth  Middlesex 
representative  district,  against  the  right  of  Simon  Brown  to  a  seat 
in  the  house  of  representatives,  have  attended  to  that  duty,  and 
beg  leave  to  report :  — 


PIEKCE   V.    BROWN.      HOUSE,    1860.  93 

The  principal  and  onl}'  points  relied  upon  to  sustain  the  allega- 
tions contained  in  the  above-named  remonstrance  are, — 

The  tenth  district  is  composed  of  Concord,  Weston  and  Lin- 
coln ; 

That  the  votes  in  said  Middlesex  district  were  divided  as  fol- 
lows, not  including  scattering  votes  :  — 

For  Simon  Brown,       .         .         .         .         .         .         192 

G.  W.  Stearns, 191 

That  one  vote  which  was  given  for  Simon  Brown,  was  b}'  J.  S. 
Williams,  now  residing  in  Waltham,  said  vote  being  given  at  the 
polls  in  the  town  of  Weston,  on  the  8th  of  November,  for  repre- 
sentative of  the  tenth  district  to  the  legislature  of  Massachusetts, 
by  the  aforesaid  J.  S.  Williams,  who  had,  it  was  alleged,  in  point 
of  law  and  fact,  at  that  time  made  a  change  of  domicile  from  the 
town  of  Weston  to  Waltham ;  that  the  vote  given  by  Williams, 
being  illegal  and  void,  the  plurality  of  Simon  Brown  fails,  and  he 
is  not  entitled  to  the  seat  he  now  occupies. 

The  only  testimony  in  this  case  before  the  committee  was  given 
by  Williams,  the  legality  of  whose  vote  was  questioned,  as  aforesaid. 

His  business  for  the  last  six  years  has  been  a  teller  in  the  Waltham 
Bank.  Was  married  on  the  24th  of  June  last,  and  boarded  with 
his  father-in-law  in  Weston  until  the  week  of  the  election  in  No- 
vember. It  appeared,  in  his  evidence,  that  he  saw  a  plan  of  a  house 
which  a  certain  builder  in  Waltham  had  in  contemplation  of  erect- 
ing, and  made  a  bargain  to  take  it,  when  completed,  for  no  definite 
length  of  time.  Said  house  was  to  be  finished  some  time  in  Octo- 
ber  or  November.  It  also  appears  that  the  house  was  finished  in 
November,  and  Mr.  Williams  commenced  moving  on  Thursday  and 
Friday,  previous  to  the  election.  It  also  appears  that  himself  and 
wife  went  on  Thursday  and  Friday  previous  to  election  and  spent 
the  night  there,  and  also  spent  the  night  of  the  election. 

It  further  appeared  that  Mr.  Williams  had  thoughts  on  the  subject 
of  voting,  and  intended  to  reserve  his  right  of  voting  in  Weston  ; 
left  some  of  his  own  clothing  and  his  wife's  clothing,  lounge,  chairs, 
etc.  His  bread  and  provisions  were  brought  from  Weston  ;  also 
that  his  washing  was  done  in  Weston  until  two  weeks  after  the 
election.  His  bedding  and  clothing  were  brought  down  partly  on 
election  week  and  part  the  week  after. 

It  also  appeared  in  evidence,  that  there  is  an  understanding 
between  himself  and  father-in-law  that  if  this,  their  first  experiment 
in  housekeeping,  shall  not  please  them,  they  are  welcome  to  come 
back  to  Weston  ;  further,  that  it  would  be  cheaper  for  him  (Wil- 


94  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

Haras)  if  lie  keeps  the  house  in  Waltham,  to  make  Weston  his  sum- 
mer residence.  Also,  that  he,  the  said  Williams,  never  had  any 
definite  intention  of  making  a  permanent  residence  in  Waltham. 

In  view  of  the  fact  that  this  man  has  been  a  voter  in  Weston 
ever  since  he  became  of  age ;  has  never  voted  anywhere  else  ; 
has  not  taken  steps  towards  voting  elsewhere  ;  was  contemplating 
a  change,  and  thought  he  had  an  undoubted  right  to  think  of  pre- 
serving his  elective  franchise  ;  that  it  cannot  be  said  of  this  man 
that  he  had  finished  moving ;  that  it  canncjt  be  said  that  he  hid 
moved,  and  that  the  most  that  can  be  made  to  appear  is  that  he  had 
commenced  moving ;  that  to  sa}' ,  under  all  the  circumstances,  that 
he,  the  said  Williams,  had  lost  his  right  to  vote,  is  applying  a  very 
illiberal  construction  to  the  laws. 

Yoiu'  committee  therefore  recommend  that  the  remonstrants 
have  leave  to  withdraw. 

Messrs.  Pk.\tt,  Ordway  and  Barker  submitted  the  following 
Minority  Report  :  — 

As  stated  by  the  majority  report,  the  whole  question  in  issue 
depends  upon  the  right  of  one  John  S.  Williams  to  vote  in  the 
town  of  Weston,  on  the  8th  day  of  November  last.  If  he 
(Williams)  had  such  right,  then  Mr.  Brown  was  legally  elected. 
If  he  had  not,  then  the  election  resulted  in  a  tie  vote. 

The  circumstances  of  the  case  as  testified  to  by  Williams  himself 
are  briefly  these  :  —  Williams  has  been  for  several  years  and  is  now 
a  teller  in  the  Waltham  Bank;  and  previous  to  the  23d  of  June 
last,  resided  wiih  one  Andrew  Floyd  in  Weston.  On  that  day  he 
married  a  daughter  of  said  Floyd,  and  continued  to  board  with  him 
as  before.  He  did  not  furnish  a  room  at  his  father-in-law's,  but 
iiad  sora)  furniture  there.  Som-time  in  July  last  he  made  a 
bargain  with  a  Mr.  Buttrick  to  take  a  house,  when  completed, 
which  said  Buttrick  was  building  in  Waltham.  The  house  was 
finished  in  October,  and  on  the  2d  of  November  he  took  possession 
by  putting  down  carpets,  etc.  On  the  3d  of  November  he  moved 
his  family  and  his  furniture,  with  the  exception  of  a  few  articles 
hcrcinafler  mentioned,  and  did  not  return  to  Weston  previous  to 
the  election,  except  for  a  .short  visit  on  Sundav,  returning  to  AVal- 
tham  at  niglit.  And  he  also  testified  that  he  had  not  then,  and  has 
not  now,  any  definite  intention  of  returning  to  Weston  to  live.  He 
further  testified  that  he  walked  over  to  Weston  on  the  afternoon  of 
election  day  and  voted,  retprning  to  Waltham  the  same  night, 
where  he  lias  resided  ever  since. 

I'pon  this  evidence  the  undersigned  respectfully  submit  that  the 
domicile  of  said  Williams  on  the  8th  of  November  (five  days  after 


PIEECE    V.    BROWN.       HOUSE,  18G0.  95 

he  remcwed  his  family')  was  clearly  in  Waltbam  and  not  in  Weston. 
Therefore  he  was  not  legallj-  entitled  to  vote  in  Weston  on  that  da}-. 

But  the  majority  of  the  committee  take  the  ground  that  he  had 
not  finished  moving,  and  consequent!}'  had  not  changed  his  domi- 
cile. He  testified  that  previous  to  the  election  he  thought  of  his 
right  to  vote,  and  that  he  intended  to  leave  enough  in  Weston  to 
retain  his  right  there.  Consequontly  he  left  a  lounge,  some  chairs, 
and  a  part  of  his  own  and  his  wife's  clothing  ;  also  had  their  washing 
done  in  Weston,  election  week.  These  things  he  removed  to 
Waltham  the  week  succeeding  the  election.  Now,  in  doing  this 
did  he  avoid  the  removal  of  his  dinnicile  to  Waltham?  Most 
clearly  not,  for  the  circumstances  all  show  that  he  intended  to 
make,  and  did  make,  Waltham  his  place  of  I'esidence,  his  domicile, 
and  he  only  intended  to  retain  his  right  to  vote  in  Weston  a  few 
days  after  he  removed  his  domicile,  his  home,  to  Waltham.  This 
clearly  he  could  not  do,  as  his  right  to  vote  depends  upon  his  place 
of  domicile. 

Under  these  circumstances  we  are  clearly  of  the  opinion,  that, 
although  he  intended  to  retain  his  right  to  vote  in  Weston,  his  acts 
did  not  correspond  with  his  intentions,  and  therefore  he  was  not  a 
legal  voter  in  Weston  on  the  8th  of  November  last.  But  he  testi- 
fies that  he  did  vote  there  at  that  time,  for  Simon  Brown  for  repre- 
sentative. This  vote,  then,  should  be  deducted  from  the  number 
which  Brown  received.  This  would  leave  the  result — Brown,  191  ; 
Stearns,  191. 

We  are,  therefore,  compelled  to  arrive  at  the  conclusion  "  that 
Simon  Brovvn  is  not  entitled  to  a  seat  in  this  house  from  the  tenth 
representative  district  of  Middlesex  County." 

[The  report  of  the  majority  of  the  committee  was  accepted. 
H.  J.,  1860,  p.  172  ;  but  in  the  opinion  of  the  editors,  the  report 
of  the  minority,  upon  the  facts  found,  is  more  in  accordance  with 
law,  and  the  more  valuable  precedent.] 


9G 


MASSACHUSETTS   ELECTION    CASES  —  1853-1885. 


HOUSE-COMMITTEE   ON   ELECTIONS,  1864. 

Messrs.  Ambrose  A.  Ranney  of  Boston,  Chairman;  Charles  H.  Per 
KINS  of  Plynipton,  Joiix  Stetsox  of  Medford,  James   K.  Comstock 
of  Blackstone,    IIexuy  W.  Foley  of  Boston,  and  Henry  Barker  of 
Quiucy. 


LuTiiER  CHAriN,  Jr.,  v.  Barnabas  Snow. 

House  Document,  No.  17.     January  21,  1864.     Report  by  A.  A.  Ranney, 

Chairman. 

Mistake  in  name  on  Ballot  Votes  cast  for  '<  Luther  Chapin  of  Ware  "  should  be 
counted  for  Luther  Chapin,  Jr.,  of  Ware,  -  where  it  appears  that  he  was  known  to  be 
a  cindidate  for  the  office,  — that  his  father,  Luther  Chapin,  lived  out  of  the  district, 
and  was  therefore  ineligible  for  election,  — and  that  no  other  person  of  that  name 
lived  in  that  toAvn. 

Same.  The  word  "  Junior"  added  to  a  name  is  no  part  of  the  name,  but  merely 
a  word  of  description  used  as  one  mode  of  distinguishing  persons  of  the  same  name. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Luther  Chapin,  Jr.,  claiming  the  seat  of  Barnabas  Snow,  the 
remonstrance  of  the  selectmen  of  the  town  of  Prescott,  the  remon- 
strance of  the  selectmen  of  Belchertown  and  others,  the  remon- 
strance of  George  H.  Gilbert  and  fifty-two  other  citizens  of  Ware, 
re|)ort : 

This  case  presents  a  single  question  only  for  determination. 
Edward  A.  Thomas  of  Prescott,  and  Barnabas  Snow  of  Ware, 
were  duly  returned,  and  now  hold  seats  in  this  house,  as  represen- 
tatives from  the  sixth  r^i^resentative  district  in  Hampshire  County, 
composed  of  Belchertown,  Ware,  Enfield,  Greenwich  and  Prescott. 
The  seat  of  said  Snow  only  is  contested.  Luther  Chapin,  Jr.,  of 
Ware,  claims  the  scat  for  himself  on  the  ground  that  172  votes 
cast,  as  expressed  on  the  ballots,  for  '•'-Luther  Chapin  of  Ware" 
were  not,  but  should  have  been,  counted  for  himself.  The  vote  of 
the  district,  as  given  and  recorded,  stood  as  follows,  viz, :  — 


Kdward  A.  Thomas  of  Prescott, 
Barnabas  Snow  of  Ware, 
Lutlicr  Chapin,  Jr.,  of  Ware,    . 
Lutlier  Chapin  of  Ware,    . 
Joliii  T.  Warner  of  Greenwich, 
Lewis  Gilbert  of  Ware,     . 


637 
294 
266 
172 
208 
1 


OIIAPIN   r.    SNOW.       HOUSE,     1864.  97 

If  the  votes  are  to  be  counted  as  contended  for  by  the  contest- 
ant, then  he,  and  not  said  Snow,  is  entitled  to  said  seat.  Some 
question  was  made  at  the  hearing  about  the  regularity  of  the  pro- 
ceedings, in  the  mode  by  which  the  return  of  the  votes  for  the 
town  of  Prescott  was  made.  But  as  the  rejection  or  admission  of 
the  vote  of  this  town  would  not  affect  or  change  the  result,  the 
committee  have  not  considered  the  alleged  irregularity  of  any 
account.  It  was,  in  the  worst  aspect  of  the  transaction,  only  an 
informality  in  sending  a  transcript  of  the  record  of  the  vote  of  that 
town,  by  the  wrong  person,  and  in  the  clerk  of  the  town  of  Prescott 
not  attending  the  meeting  of  the  clerks  to  count  the  votes  of  the 
district,  as  required  by  law.  Luther  Chapin,  the  father  of  the 
contestant,  was  living  at  the  date  of  the  election.  He  then  resided 
in  Pelham,  and  had  lived  there  some  sixty-seven  3'ears  prior  to 
that  time.  He  never  lived  in  "Ware,  and  there  was  no  other  resi- 
dent of  that  town,  nor  within  the  district,  answering  to  that  name, 
unless  he  be  the  contestant.  Luther  Chapin,  Jr.,  the  contestant, 
was  and  has  been  for  some  seven  years  last  past  a  resident  of,  and 
engaged  in  business  in,  the  town  of  Ware.  There  being  no  other 
person  of  that  name  in  the  town,  he  has  been  called  and  known, 
and  his  name  written,  sometimes  as  Luther  Chapin,  and  sometimes 
with  the  addition  of  junior:  He  was  known  to  be  a  candidate  for 
the  said  office.  His  own  son  printed  or  got  printed  man}'  or  most 
of  the  ballots  cast  for  him,  as  Luther  Chapin  of  Ware,  as  is  alleged. 

The  town  of  Ware  alone  cast  seventy-seven  of  the  disputed 
votes. 

Under  these  circumstances,  and  with  the  aid  of  these  facts,  the 
committee  have  no  doubt  that  the  votes  in  question  were  designed 
for  the  contestant.  The  intention  of  the  electors  ought,  of  course, 
to  govern  in  such  a  case,  if  the  same  can  be  legally  ascertained  and 
regai'ded.  If  the  father  of  the  contestant  had  lived  in  Ware,  and 
been  eligible  to  the  office,  the  different  classes  of  votes  referred  to 
would  have  been  distinct,  and  clearly,  on  the  face  of  the  ballots, 
have  designated  and  distinguished  two  diflerent  individuals.  In 
such  a  case,  if  it  existed,  it  would  hardly  have  been  safe  or  com- 
petent in  law,  to  have  attempted  to  speculate  or  inquire  into  the 
actual  intention  of  the  voters.  But  no  such  case  exists  here. 
'■'■Luther  Chapi7i,  of  Ware"  surely  did  not  designate,  and  could 
not  be  held  to  apply  to,  the  father  of  the  contestant,  for  he  was 
'■'■Luther  Chapin,  of  Pelham."  It  did  not  apply  to  any  other 
person  in  Ware,  unless  it  be  the  contestant ;  for  there  was  none 
such.  Besides,  Luther  Chapin,  of  Pelham,  lived  without  the  dis- 
trict, and  was  constitutionally  ineligible  to  the  office  ;  and  it  would 
be  a  very  violent  presumption,  to  say  the  least,  to  suppose  the  elec- 


98  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

tors  \oU-a  for   one  whom   they   could  uot   constitutionally  elect, 
when  there  was  anotlior  individual  answering  the  description,  who 

was  eligible. 

The  L\  nn  case  (Election  Cases  in  Massachusetts,  Gushing,  S.  and 
.)..  p.  236)  furnishes  a  precedent  of  some  analogy  and  value  on 
tliis  point.  In  that  case,  the  name  of  the  person  balloted  for,  and 
as  the  vote  was  recorded,  was  James  Pratt,  Junior.  A  person 
whose  name  was  James  Pratt,  and  who  never  carried  the  Junior 
attached  to  his  name,  received  the  certificate  of  election  and  was 
atlmitted  to  his  seat  in  the  House.  His  seat  was  contested.  It 
appeared  that  at  the  time  of  the  election,  there  was  another  resident 
of  the  same  town  by  the  name  of  James  Pratt,  no  way  related  to 
tiie  sitting  member ;  but  he  was  constitutionally  ineligible.  The 
committee  and  the  House  held  the  sitting  member  entitled  to  his 
seat.  The  report  in  that  case  says:  "  It  would  be  doing  violence 
to  every  sound  rule  of  proceeding,  in  such  cases,  to  presume  that 
the  electors  voted  for  one  whom  they  could  not  constitutionally 
elect,  when  the  individual  intended  was  constitutionally  eligible." 

It  is  to  ]»e  observed  that  the  vote  of  Ware  alone  for  "Luther 
Chapin,  of  Ware."  if  counted  for  the  contestant,  would  elect  him. 
But  there  seems  no  principle  by  which  such  votes  in  that  town  can 
be  distinguished  from  similar  ballots  in  the  other  towns  of  the  dis- 
trict, unless  some  presumption  may  be  raised  as  to  the  intention 
of  the  voters  of  that  town  from  their  supposed  knowledge  as  to  the 
residents  of  the  town. 

^  It  is  contended  b}-  the  sitting  member  that  "  Luther  Chapin,  of 
Ware,"  is  not  the  name  of  the  contestant,  and  does  not  designate 
him,  but  some  one  else.  This  position  involves  the  law  as  to  what 
etiect  is  to  be  given  to  the  addition  of  the  word  '•'•Junior"  to  the 
name  ;  and  whether  it  does,  or  does  not,  form  a  part  of  the  name. 
The  law  seems  clear  that  it  is  no  part  of  the  name,  but  that  it  is 
used  as  a  mode  of  distinguishing  individuals  of  the  same  name, 
especially  when  residents  of  the  same  town.  P>ut  this  is  not  the 
only  mode  used  for  such  a  purpose.  The  residence  and  occupation 
are  often  used  for  the  same  purpose.  Such  are  the  decisions  of  the 
Supreme  Court  of  this  Commonwealth  and  elsewhere.  {Kincaid  v. 
y/o»7^,  10  Mass.  203  ;  Commonwealth  v.  Perkins,  1  Pick.  388  ; 
Cohb  v.  Lucas,  15  Pick.  7;  Jameson  v.  Isaacs,  12  Verm.  611; 
Jnhosnn  V.  Ellison,  4  Monr.  526.)  Morton,  J.,  in  15  Pick.  p.  9, 
says  :  "  The  addition  of  second  to  his  name  would  as  clearly  distin- 
guish him  from  an  older  person  of  the  same  name,  as  junior. 
Neither  of  tiic  terms  constitutes  any  part  of  the  name,  but  they  are 
uscl  to  describe  and  designate  the  person  ;  as  his  residence  is  some- 
times used  for  the  same  purpose."     Collamer,  J.  (in  12  Vermont 


CHAPIN   V.    SNOW.       HOUSE,    1864.  99 

Reports,  p.  613),  says,  in  giving  the  opinion  of  the  whole  Court: 
"  The  usual  addition  of  Junior  to  a  man's  name,  to  distinguish  him 
from  an  elder  man  of  the  same  name  and  place,  constitutes  no  part 
of  such  man's  name,  any  more  than  longer^  whiter^  cooper^  or  any 
other  designation.  This  has  been  too  often  decided  to  be  again 
questioned."  * 

Inasmuch  as,  in  the  case  now  under  consideration,  the  residence 
is  given  on  the  ballots  it  sufflcientl}'  designates  the  contestant,  and 
can  apply  to  no  one  else.  He  is  both  "  Luther  Chapin,  of  Ware," 
and  "  Luther  Chapin,  Jr.,  of  Ware,"  if  any  one  sees  fit  to  add  the 
junior,  in  such  a  case.  The  residence  being  given,  either  desig- 
nation would  apply  to  him,  in  the  absence  of  any  other  person 
bearing  the  same  name  in  the  town  named.  So  that  the  case 
seems  to  admit  of  no  doubt  as  to  whom  the  voters  meant  to  vote 
for,  and  to  whom  the  ballots  themselves  apply. 

The  committee  therefore  report,  that  Luther  Chapin,  Jr.,  of 
Ware,  the  contestant,  and  not  Barnabas  Snow,  of  Ware,  is  entitled 
to  said  seat. 

[After  a  motion  to  recommit,  with  instructions  to  inquire  whether 
any  legal  election  had  been  held,  was  made  and  lost,  the  report 
of  the  committee  was  accepted.     H.  J.  1864,  p.  54.] 

*  [Note  by  the  Editors.  It  is  clearly  settled  in  Massachusetts  that  the  words, 
"  Jimior,"  "  Second  "  or  "  Younger,"  annexed  to  a  person's  name,  are  used  merely 
for  the  purpose  of  designation  and  distinction,  and  form  no  part  of  the  name.  The 
place  of  residence  or  other  description  might  be  used  for  the  same  purpose.  In  Kin- 
caid  V.  Howe,  10  Mass.  203,  205,  the  court  says  :  —  "  Junior  or  Younger  is  no  part  of 
the  name,  —  but  an  addition  by  use,  and  serving  for  a  convenient  distinction,  when  a 
father  and  son  have  each  of  them  the  same  Christian  and  surname,  or  when  two  per- 
sons of  the  same  names  and  occupations  reside  in  the  same  town."  See  in  addition 
to  cases  cited  in  the  above  report,  Commonwealth  v.  Beckley,  3  Met.  330 ;  Common- 
wealth V.  Parmcnter,  101  Mass.  211.  In  Simpson  v.  Dix,  131  Mass.  179,  the  court 
held  that,  where  land  was  conveyed  to  J.  S.,  and  there  were  two  persons  of  that 
name,  a  father  and  son,  there  was  no  presumption  that  the  father  was  intended  as 
grantee,  but  it  was  purely  a  question  of  fact,  to  be  determined  by  the  circumstances 
under  which  the  conveyance  was  made.  It  is  held  in  cases  before  Congress,  that  a 
candidate  is  entitled  to  the  benefits  of  all  ballots  which  are  manifestly  intended  for 
him,  though  they  omit  the  addition  of  the  word  "  Junior,"  by  which  he  is  generally 
known.  Turner  v.  Baylies  (Plymouth  Dist.  Massachusetts) ;  Clark  &  Hall  Cong. 
Election  Cases,  234.  See  also,  Williams  v.  Bowers,  lb.  263 ;  Willoughby  v.  Smith, 
lb.  265.  The  question  is  elaborately  discussed  in  People  v.  Cook,  14  Barb.  (N.  Y.j 
299  et  seq.'\ 


100  MASSACHUSETTS    ELECTION    CASES ]8r);^,-18So. 


Joseph  T.  Wright  v.  Joseph  A.  Hooper. 

House  Docnment,  No.  20.     January  26,  186.").     Ileport  by  Euwakd  Baxgs, 

Chairman. 

Mistake  in  name  of  Candidate.  Votes  cast  for  "  Thomas  T.  Wiiglit  of  Marble- 
head,"  for  representative,  should  be,  in  an  election  controversy,  counted  for  Joseph 
T.  Wrif^ht,  upon  proof  that  there  was  no  person  named  Thomas  T.  Wright  in  the 
district, —  that  no  person,  except  the  petitioner,  named  Wright,  eligil)lc  for  election, 
then  lived  in  Marlilehead,  —  that  Joseph  T.  Wright  was  one  of  the  regular  candi- 
dates of  his  party  for  that  otficc,  and  that  his  name  was  primed  "  Thomas,"  instead 
of  '  J(«eph,"  on  some  of  the  ballots,  by  mistake. 

Same.  Evidence;  of  intention  of  Voter.  While  any  facts  may  l)e  given  in  evidence 
tending  to  explain  the  intention  of  the  voter  regarding  his  vote,  and  his  own  testi- 
mony as  to  such  facts  may  be  received,  he  should  not  be  allowed  to  testify  for  whom 
he  intended  to  vote  by  his  ballot. 

The  Committee  on  J^lectious,  to  whom  was  referred  the  petition 
of  Joseph  T.  Wright,  claiming  a  seat  in  this  house,  and  remon- 
strating against  the  right  of  Joseph  A,  Hooper  to  hold  the  certifi- 
cate of  election  which  has  been  given  to  him  ;  the  remonstrance  of 
C.  W.  Palfre)',  W.  S.  Messervy  and  fort^'-three  others,  legal  voters 
in  ward  5  of  Salem  ;  and  the  remonstrance  of  William  Fabens  and 
twenty-two  others,  legal  voters  of  Marlilehead,  report:  That  at  a 
hearing  of  the  parties  in  the  above  matter,  the  following  facts 
were  proved  to  the  satisfaction  of  the  committee,  b}'  competent 
evidence. 

That  at  the  election  held  on  the  eighth  day  of  November  last,  in 
the  fourteenth  representative  district,  composed  of  the  town  of 
Marblehead  and  the  fifth  ward  of  the  city  of  Salem,  the  vote  of  the 
district  for  representative  to  the  General  Court  was  recorded  as 
follows  : — 


For    Joseph  T.  Wright  of   Marblehead, 
George  W.  Patch  of  Marblehead, 
Joseph  A.  Hooper   of  Marblehead, 
William  Nutting,  Jr.,  of  Marblehead 
Thomas  T.  Wright  of  Marblehead, 
Joseph  Hooper, 
Stephen  Prime, 


720 
942 
742 
717 
2.03 
1 
1 


That  certificates  of  the  election  of  (Jeorge  W.  Patch  and  Joseph 
A.   Hooper  were  duly  returned,  and  that  they  now  hold  seats  in 


WRIGHT   V.    HOOPER.       HOU8E,    1865.  K)l 

this  house   as  representatives  From  said  district, — the  right  of  said 
(reorge  W.  Patch  to  his  seat  not  being  contested ; 

That  all  the  votes  thrown  for  Thomas  T.  Wright  were  cast  in 
ward  5  of  the  city  of  Salem  ; 

That  there  is,  and  then  was,  no  such  person  as  Thomas  T. 
Wright  of  Marblehead  ; 

That  no  person  named  Thomas  T.  Wright  was  the  candidate  of 
any  party  at  tlie  said  election  in  said  district,  or  was  to  he  found 
in  said  district ; 

That  no  person  named  Wriglit,  eligible  to  the  office  of  represen- 
tative, then  lived  in  Marblehead,  except  said  Joseph  T.  Wright, 
the  petitioner ; 

That  said  Joseph  T.  Wright  was,  with  said  George  W.  Patch, 
nominated  as  the  candidate  of  the  republican  party  for  representa- 
tive to  the  General  Court ;  that  he  W' as  a  returned  soldier  who  had 
lost  one  arm  in  battle  ; 

That  the  ballots  used  in  said  ward  5,  were  printed  by  order  of 
tlic  republican  committee  of  the  city  of  Salem,  and  were  by  them 
intended  to  have  borne  the  names  of  George  W.  Patch  and  of  said 
Josepii  T.  Wright  for  representatives  to  the  General  Court;  but 
tliat,  by  mistake,  the  name  of  said  Wriglit  was  printed  Thomas  T. 
Wright;  that  the  mistake  was  not  discovered  until  two  hundred 
and  fifty-three  of  the  misprinted  ballots  had  been  cast,  when  the 
word  ''  Thomas"  on  the  ballots  remaining  in  the  vote  distributors' 
hands,  was  altered  in  pencil  to  "  Joseph "  and  that  it  was  well 
known  at  the  voting-room  in  said  ward  5,  and  freely  commented 
upon,  that  the  republicans  were  voting  for  Wright  of  Marblehead, 
a  one-armeil  soldier,  attention  being  particularly  drawn  to  this  cir- 
cumstance from  the  fact  that  said  Joseph  A.  Hooper,  who  was  the 
candidate  of  the  democratic  part}-,  was  also  a  returned  soldier  who 
had  lost  one  arm  in  battle. 

The  sitting  member,  Joseph  A.  Hooper,  who  was  present  at  the 
hearing,  made  no  attempt  to  dispute  the  foregoing  facts,  but  franklv 
admitted  the  same  to  be  true,  so  far  as  they  were  within  his 
knowledge. 

There  was  also  evidence  before  the  committee,  tending  to  [)r(n'e 
that  all  the  persons  who  signed  the  remonstrance  of  C.  W.  Palfrey 
and  others  were  legal  voters  of  said  ward  5  ;  and  several  of  said 
signers  appeared  before  the  committee  and  testified  that  they  cast 
ballots  bearing  the  name  of  Thomas  T.  Wright,  but  intended  to 
vote  and  supposed  they  were  voting  for  the  petitioner. 

This  evidence  the  committee  thought  it  best  not  to  consider. 
Thev  could  find  no  instance  in  which  electors  have,  in  this  Com- 


102  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

monwealth,  been  allowed  to  testify  as  to  the  person  meant  to  be 
designated  by  their  ballots. 

In  Neve  York,  it  seems  to  be  settled  by  a  series  of  decisions  that 
they  may  so  testify.— Peop?f'  v.  Ferguson,  8  Cowen,  102  ;  People 
V.  Seaman,  5  Denio,  409  ;  People  v.  Cook,  4  Selden,  67. 

But  the  committee  perceive  objections,  on  the  ground  of  public 
policy,  to  the  admission  of  such  evidence,  and  consider  the  safer 
rule  to  be  that,  while  any  facts  may  be  given  in  evidence  to  explain 
the  intention  of  the  elector,  and  his  own  testimony  as  to  such  facts 
may  be  received,  he  should  not  be  allowed  to  testify  as  to  his  own 
intention  in  voting. — See  Carpenter  v.  Ely,  4  Wis.  420, 

Without  this  evidence,  however,  there  remains  enough  to  satisfy 
the  committee  that  those  voters  who  cast  the  ballots  printed  Thomas 
T.  Wright,  intended  to  vote  for  the  petitionei". 

It  has  often  been  decided  that  the  only  object  of  an  inquiry  like 
the  present,  should  be  to  ascertain,  b}'  competent  evidence,  the 
expressed  will  of  the  electors. — Stor>/,  Pet.,  20  Pick,  484-493  ; 
Mass.  Gonl.  Elections,  Gushing  S,  and  J.,  Lynn,  236. 

It  is  a  similar  object  which  courts  propose  to  themselves  in  cases 
where  a  question  is  raised  as  to  the  proper  i-ecipient  of  a  testator's 
l)Ounty,  namely  :  to  ascertain  and  carry  out  the  will  of  the  testator. 

Had  a  legacy  been  bequeathed  by  will  to  Thomas  T.  Wright,  of 
Marl)lehead,  and  a  claim  therefor  made  b^'the  petitioner,  and  sup- 
ported by  evidence  similar  in  kind  aud  degree  to  that  before  the 
committee  in  this  case,  the  court  would  have  no  difficulty  in  direct- 
ing the  legacy  to  be  paid  to  the  petitioner, — See  Smith  v.  Coney, 
6  Vesey,  42  ;  Thayer  v.  Boston,  15  Gray,  347. 

This  case,  though  not  precisely  similar  in  its  facts,  comes  within 
the  principles  of  law  recognized  and  adopted  in  the  Lynn  case. — 
Mass.  Cont.  Elections, Cushing,  S.  and  J.,  236  ;  Chapin  v.  Snow,  ante, 
p.  96  ;  Carpenter  v.  Ely,  4  Wis.  420  ;  People  v.  Cook,  4  Selden,  67. 

The  committee  therefore  report,  that  Joseph  T.  Wright  of  Mar- 
blehead,  the  petitioner,  and  not  said  Joseph  A.  Hooper  of  Marble- 
head,  was  entitled  to  a  seat  in  this  house  as  representative  from  the 
fourteenth  representative  district,  and  that,  said  Joseph  T.  Wright 
having  since  died,  said  seat  is  hereby  declared  vacated.* 

[The  report  was  accepted.     H.  J.  1865,  p.  70.] 

•  [Note  ky  the  Editors.  Mistake  in  Name  on  Ballot.  It  is  well  settled  by 
judicial  decisions  that  ballots  cast  for  a  person  in  whicli  he  is  described  by  his  in- 
itials only,  by  wronR  initials,  by  his  surname  alone,  by  his  name  incorrectly  spelt, 
or  with  any  mistoke  or  incompleteness  in  the  name,  will,  in  any  proceeding  in  court, 
or  before  a  legislative  tribunal  to  test  his  title  to  the  office,  l)e  counted  for  him,  upon 
proper  and  sufficient  proof  that  such  ballots  were  intended  to  be  cast  for  him.  In 
the  leading  case  of  Carpenter  v.  Ely,  4  Wis.  420,  votes  for  "  D.  M.  Carpenter,"  "  M. 


WEIGHT    V.    HOOPER.       HOUSE,    1865.  103 

D.  Carpenter,"  "  M.  T.  Carpenter,"  and  "  Carpenter,"  were  proved  to  have  been  in- 
tended, and  were  therefore  counted  for  Matthew  H.  Carpenter,  and  votes  for  "  George 
B.  Ela,"  and  '"Ely,"  were  counted  for  George  B.  Ely.  In  People  v.  Ferguson,  8 
Cowen  (N.  Y.)  102,  a  ballot  for  "  H.  F.  Yates  "  was  counted  for  Henry  F.  Yates. 
In  People  v.  Seaman,  5  Denio  (X.  Y.)  409,  a  ballot  for  "  J.  R.  Eastman, "  was 
counted  for  John  R.  Eastman.  And  so  in  People  v.  Cook,  8  N.  Y.  67,  ballots  for 
"  BenjaminC.  Welch,  Jr.,"  and  "Benjamin  Welch,"  were  shown  to  have  been  intended 
for  Benjamin  Welch,  Jr.  For  other  authorities  in  support  of  the  rule  that  mistakes 
in  the  name  of  the  candidate,  or  of  the  office  for  which  he  is  voted,  will  be 
corrected  in  a  contest  for  office,  upon  proper  proof,  see  People  v.  McManus, 
34  Barb.  (N.  Y.)  620;  Twejity-sixth  Ward  Election,  35  Leg.  Int.  (Penn.)  420; 
State  V.  Gates,  43  Conn.  538;  Clark  v.  Robinson,  88  111.498;  Talkingtonv.  Turner, 
71  111.  234;  People  v.  Matteson,  17  111.  167.  The  rule  is  similar  in  England,  Regina 
V.  Bradley,  3  Ellis  &  Ellis,  634.  So  in  Congress,  votes  for  "E.  M.  Braxton,' 
"Elliott  Braxton,"  and  "Braxton,"  were  counted  for  Elliott  M.  Braxton,  upon 
reasons  elaborately  stated  by  Mr.  McCrary,  in  the  report  of  the  committee. 
McKenzie  v.  Braxton,  Smith  Congressional  Election  Cases,  p.  19.  And  see  Gunter 
V.  Wiltshire,  lb.,  233;  Lee  v.  Rainey,  lb.  389;  Strobert  v.  Herbert,  2  Ellsworth  Con- 
gressional Election  Cases,  5 ;  Chapman  X.  Ferguson,  1  Bartlett  Congressional  Elec- 
tion Cases,  267, — in  which  case,  votes  for  "Judge  Ferguson,"  were  counted  for 
Fenner  Ferguson. 

It  is  held  in  Massachusetts  that  the  use  of  an  initial  letter  in  place  of  the  Christian 
name  of  persons,  in  legal  documents  or  proceedings,  is  not  to  be  commended,  be- 
cause of  the  danger  of  uncertainty  in  the  identification  of  the  person,  ~  but  where  no 
doubt  of  the  identity  is  created,  or  where  such  doubt  can  be  removed  by  competent 
evidence,  the  omission  to  state  the  Christian  name  at  length  is  not  necessarily  erro- 
neous. Clark  \.  Board  of  Examiners  of  Hampden  County,  126  Mass.  282  ;  Getchell 
v.  Moran,  124  Mass.  404 ;  Patrick  v.  Smith,  120  Mass.  510 ;  Commonwealth  v.  Ham- 
ilton, 15  Gray,  480.  And  see,  Commonwealth  v.  O' Baldwin,  103  Mass.  210;  Soicle 
V.  Sou-le,  10  Pick.  376;  Shelbimie  v.  Rochester,  1  Pick.  470;  Collins  v.  Douglas,  1 
Gray,  167.  So  the  omission  of  the  middle  initial  in  a  name  in  a  legal  document,  is 
immaterial,  if  there  is  no  doubt  of  the  identity  of  the  person.  Comniomoealth  v. 
Gormley,  133  Mass.  580 ;  Commonealth  v.  O'Hearn,  132  Mass.  553 ;  Du-yer  v.  Win- 
ters, 126  Mass.  186.  In  the  absence  of  proof,  however,  the  conrt  cannot  assume 
that  "  George  Allen  "  and  "  George  E.  Allen  "  refer  to  the  same  person.  Common- 
■wealth\.  Shearman,  11  Cnsh.  546. 

Evidence  to  prove  Intention.  To  prove  for  whom  a  ballot  was  intended,  extrinsic 
evidence  is  admissible,  provided  such  evidence  explains  and  applies,  without  contra- 
dicting, the  ballot.  The  rule  is  the  same  as  in  cases  of  latent  ambiguities  in  the 
language  of  contracts  and  wills.  That  rule  was  early  affirmed  in  Massachusetts,  as 
follov,'S:  "That  an  ambiguity  appearing  upon  the  face  of  the  instrument,  which 
has  received  the  appellation  of  patent  ambiguity,  must  be  explained  by  the  instru- 
ment itself,  taking  into  view  all  its  parts,  and  if  it  is  not  capable  of  such  explana- 
tion, that  it  is  void  for  uncertainty ;  and  that  a  concealed  or  latent  ambiguity,  made 
to  appear  by  some  fact  referred  to  in  the  instrument,  may  be  explained  by  parol 
testimony,  the  evidence  then  being  of  the  same  nature  with  that  which  made  the  am- 
biguity appear."  Stackpole  v.  Arnold,  W.  Mass.  27,30.  So  parol  evidence  was 
admitted  to  show  that  a  note  given  to  "  Ebenezer  Hall "  was  the  note  intended  to  be 
secured  by  a  mortgage  subsequently  given  to  "  Ebenezer  Hall,  3d."  Hall  v.  Tufts, 
18  Pick.  45.").  Where  there  are  two  persons  of  the  same  name,  to  either  of  whom 
the  description  of  grantee  in  a  deed  will  apply,  there  is  a  latent  ambiguity,  and  ex- 
trinsic evidence  to  show  which  of  them  was  intended  is  admissible.  Kingsford  v. 
Hood,  105  Mass.  495.  So  a  deed  U)  "  Hiram  Gowing,  cordwainer,"  was  shown  by 
parol  evidence  to  have  been  intended  for  Hiram  G.  Gowing.  Peabody  v.  Brown, 
10  Gray,  45.  And  where  a  deed  to  :i  married  woman  contains  her  maiden  name  as 
grantee,  the  intention  may  be  proved  by  evidence  that  she  was  l^nown  to  the  grantor 
by  her  maiden  name,  and  that  there  was  no  other  person  claiming  the  name  used  in 


101  MASSACHUSETTS   ELECTION   ©ASES  —  1853-1885. 

iiu-  .R<n.  Scdiiuui  \.  Wriijht,  13  Pick.  523.  But  evidence  is  not  admissible  to  show 
that  the  niinic  of  the  {"rantee  in  a  deed,  was  written  by  mistake,  in  place  of  another 
pers«in,  —  there  being  no  ambiguity  in  the  deed.  Crawford  v.  Spencer,  8  Cush.  418. 
Under  a  will,  where  the  name  of  a  devisee  or  legatee  is  incorrectly  stated,  leaving 
u  latent  ambiguity  as  to  the  person  intended,  evidence  is  admissible  to  prove  the  tes- 
tator's intention.  Thayer  v.  Boston,  15  Gray,  347 ;  Bodmiin  v.  American  Tract 
Society,  9  All.  447.  But  if  there  is  no  ambiguity  in  the  name,  evidence  is  inadmis- 
sible that  some  other  person  than  that  named,  was  intended  by  the  testator.  Tucker 
V.  Seaman's  Aid  Socirty,  7  Met.  188;  Bliss  v.  America7i  Bible  Society,  2  All.  334. 
F"or  other  .Massachusetts  case.<,  in  which  evidence  has  been  admitted  to  explain 
latent  ambiguities  in  the  description  of  persons  or  subject  matter,  see  Sargent  v. 
Adams,  3  Gray,  72;  Sutton  v.  Bowkcr,  5  Gray,  IKi;  Gcrrish  v.  Towne,  3  Gniy,  82; 
Woods  v.  Sawtn,  4  (rray,322;  Miller  v.  Stevens,  100  Mass.  518;   Sioett  v.  Shtmiway, 

102  Mass.  365;  Commonwealth  v.  Morgan,  107  Mass.  199;  Hernng  v.  Boston 
Iron  Co.,  I  (iray,  134;  Barry  v.  Bennett,  7  Met.  3-54. 

The  kind  of  evidence  admissible  to  prove  for  whom  a  vote,  incorrectly  expressed, 
wa-x  intended,  is  stated  by  .ludge  Cooley :  —  "  We  think  evidence  of  such  facts  as  may 
be  called  the  circumstances  surrounding  the  election,  —  such  as,  who  were  the  can- 
didates brought  forward  by  the  nominating  conventions;  whether  other  persons 
of  the  same  names  resided  in  the  district  from  which  the  officer  was  to  be  chosen, 
and  if  so,  whether  they  were  eligible  or  had  been  named  for  the  office;  if  a  ballot 
was  printed  imperfectly,  how  it  came  to  be  so  printed,  and  the  like,—  is  admissible 
for  the  purpose  of  showing  that  an  imperfect  ballot  was  meant  for  a  particular  can- 
didate, unless  the  name  is  so  different  that  to  thus  apply  it  would  be  to  contradict 
the  ballot  itself,  or  unless  the  ballot  is  so  defective  that  it  fails  to  show  any  inten- 
tion whatever;  in  which  cases  it  is  not  admissible."  Cooley,  Constitutional  Lim- 
itatiotis,  p.  770.  The  rule  is  recognized  in  Clark  v.  Board  of  Examiners,  126 
Mass.  283,  28.i,  published  in  the  supplement  hereto,  and  in  Carpenter  v.  Ely,  4  Wis. 
258.  It  was  adopted  in  Congress  in  McKenzie  v.  Braxton,  Smith  Congressional 
Election  Cases,  22,  —  the  committee  (by  Mr.  McCrary)  adding:  "It  is  true  that 
no  evidence  aliunde  can  be  received  to  contradict  the  ballot,  nor  to  give  it  a  meaning 
when  it  expresses  no  meaning  of  itself;  but  if  it  be  ambiguous  or  of  doubtful  import, 
the  circumstances  surrounding  the  election  may  be  given  in  evidence  to  explain  it, 
and  to  enable  the  house  to  get  at  the  voter's  intent.  We  see  no  reason  why  a  ballot, 
ambiguous  on  its  face,  may  not  be  construed  in  the  light  of  surrounding  circum- 
st;mces,  in  the  same  manner,  and  to  the  same  extent,  as  a  written  contract."  And 
see  McCrary,  Elections,  sects.  395-397. 

Voter  cannot  testify  directly  for  whom  he  intended  to  vote.  The  intention  of  the 
voter  can  be  learned  only  (as  ruled  by  the  committee  in  the  above  case)  from  the 
ballot  m  question  and  the  circumstances  under  which  it  was  cast.  The  law  upon 
this  ,H)intiK  stated  by  Judge  Cooley  :-"  We  think  that  in  any  case  to  allow  a  voter 
u.  testify  by  way  of  explanation  of  a  ballot  otherwise  tatally  defective,  that  he  voted 
the  particular  ballot  and  intended  it  for  a  particular  candidate,  is  exceedingly  dan- 
gerous, invites  c<.rruption  an<l  fraud,  and  ought  not  to  be  suffered.  Nothing  is  more 
easy  than  lor  reckless  parties  thus  to  testify  to  their  intentions,  without  the  possi- 
hility  of  their  testimony  being  disproved  if  untrue;  and  if  one  falsely  swears  to  hav- 
ing deposited  a  particular  ballot,  unless  the  party  really  depositing  it  sees  fit  to  dis- 
close h.8  knowledge,  the  evidence  must  pass  unchallenged,  and  the  temptation  to 
sub<.rnation  of  perjury,  when  public  offices  are  at  stake,  and  when  it  may  be  com- 
!h  1  ^'T  '"'P""'t3',  is  too  great  to  allow  such  evidence  to  be  sanctioned.  While 
the  law  should  seek  to  give  effect  to  the  intention  of  the  voter,  whenever  it  can  be 
fairly  ascert^imed,  yet  this  intention  must  be  that  which  is  expressed  in  due  form  of 

iolpcl  '^'"."'•'•^Vr*''"'  ''"^^'''  '"  '^'  '^''''''''  '"-^^^^^  ^"d  where  the  ballot,  in 
connretion  with  such  facts  surrounding  the  election  as  would  be  provable  if  it  were 

ir  oHiT  ""''  T  "'■'  '"'""  '''  P^'^P^'"  ^'^^^^•^  ^«  ^PPly  "  »o  om  of  the  candi- 
date., pobcN .  . .....nding  m  this  particular  with  the  general  rule  of  law  as  applicable 


WEIGHT    V.    HOOPER.       HOUSE,    18G5.  105 

to  other  transactions,  requires  that  the  ballot  shall  not  be  counted  for  such  candi- 
date." Cooley,  Conatitutional  Limitations,  4th  ed.,  p.  770.  The  former  practice  in 
New  Yorii,  referred  to  l)y  the  connnittee,  of  allowing  the  voter  to  testify  for  whom 
lie  intended  to  vote,  has  been  changed  hy  later  decisions.  In  People  v.  Saxton,  22 
N.  Y.  309,  311,  the  court  held  that  "  the  intention  of  tiie  voter  is  to  l)c  inferred,  not 
from  evidence  given  by  him  of  the  mental  purpose  with  which  he  deposited  his  i)al- 
iot,  or  his  notions  of  tiie  legal  effect  of  what  it  contained  or  omitted,  but  l)y  a  rea- 
sonable construction  of  his  acts."  And  see  Xaar,  Elections,  p.  137  ;  People  v.  Cieotte, 
K;  Mich.  283;  State  v.  Griffey,  5  Nebraska,  161.  In  Kingsford  v.  Hood,  10;")  Mass. 
19."),  the  court  refused  to  allow  evidence  of  the  declarations  of  tlio  grantor  in  a  deed, 
regarding  the  penson  intended  as  grantee. 

Distinction  between  Canvassing  Boards  and  Tribunals  trying  Title  to  Office.  In 
determining  whether  votes,  incorrect  in  the  name  of  the  candidate  for  whom  thej' 
were  intended,  should  be  counted  for  him,  the  distinction  between  canvassing  and 
returning  boards,  and  tribunals  empowered  to  try  election  controversies  and  decide 
the  title  to  the  office,  must  be  observed.  A  canvassing  board  has  merely  the  minis- 
terial duty  of  counting  the  votes  returned,  exactly  as  they  are  returned,  and  cannot 
receive  or  consider  any  extrinsic  evidence  regarding  the  intention  of  the  voter, 
their  jurisdiction  being  confined  to  the  records  of  votes  returned  and  laid  before 
them.— Clark  \.  Board  of  Exaininers,  VUci  Mass.  282.  But  in  the  case  of  a  contro- 
verted election  before  a  legislative  body  or  a  judicial  tribunal  by  (jno  warranto  or 
other  process  to  try  the  title  to  an  office,  the  question  is  not  who  ajjpears  from  the 
returns  to  have  been  elected,  but  who  in  fact  \vas  elected;  and  upon  that  issue 
extrinsic  evidence  is  competent  to  show  that  ballots,  incorrect  in  the  statement  of  the 
name  of  the  candidate,  were  intended  and  should  be  counted  for  him.    Cases  supra.] 


10(i  MASSACHUSETTS    ELECTION    CASES 1853-1885. 


SENATE  — 1860. 

Samuel  T.  Field  et  al.  v.  William  F.  Wilder. 

Hun.  KouKRT  M.  Mouse,  Jk.,  Hou.  William  L.  Reed,  Hon.  (Jeorge 
().  BuA.sTow,  Hou.  James  Easton,  2d,  and  Hon.  Ebenezek  Davis, 
Sjn'cial  Committee. 

Senate  Document,  No.  16(5.      March  28,  1866.      Report  by  Mr.  Morse, 

Chairman. 

Eligibility  of  Sc-nator.  Inhabitancy.  Upon  the  question  whether  a  senator, 
ivtiirned  as  elected  in  18G5,  had  been  an  Inhabitant  of  the  Commonwealth  for  the 
-pace  of  (ive  years  immediately  preceding  his  election,  it  appeared  that  he  was  born 
and  brought  up  in  Shelburne,  Massachusetts.  About  1854  he  went  to  New  Jersey 
and  remained  there  teaching  school  for  about  two  years.  He  then  went  to  Illinois, 
where  he  lived  until  1863,  marrying  and  having  children  there;  being  commissioned 
a  justice  of  the  peace  for  four  years  from  April,  1857,  and  serving  as  a  commissioned 
officer  in  the  army  from  that  State  in  the  war. .  He  returned  with  his  family  to  Shel- 
himic  in  1863,  in  which  year  his  name  first  appeared  upon  the  voting  list  there,  being 
assessed  and  paying  his  first  tax  there  in  1864,  and  continuing  to  reside  there.  It 
was  held  that  he  had  not  been  an  inhabitant  of  the  Commonwealth  for  such  space  of 
live  years  and  was  ineligible  to  election. 

Tlif  Committee  to  whom  was  referred  the  remonstrance  of 
Samuel  T.  Field  and  twenty-one  others,  legal  voters  of  the 
Franklin  Senatorial  District,  against  the  right  of  William  F. 
Wilder  to  hold  a  seat  in  the  Senate,  respectfully  submit  the  follow- 
ing report:  The  Constitution  (chap.  1,  sect.  2,  art.  5)  pro- 
vides as  follows :  — 

''  No  person  shall  be  capable  of  being  elected  as  a  senator,  who 
has  not  been  an  inhabitant  of  this  Commonwealth  for  the  space  of 
five  years  immediately  preceding  his  election." 

The  remonstrants  alleged  that  Mr.  Wilder  was  not  eligible  to 
the  oflice  of  senator  at  the  time  of  election,  and  is  not  now  elig- 
ible, "  because  he  had  not  been  an  inhabitant  of  this  Common- 
wealth five  years  immediately  preceding  the  time  of  said  election." 
And  the  committee  were  to  consider  and  to  report  upon  the  correct- 
ness of  that  allegation. 

At  the  hearing,  Mr.  D.  O.  Fisk  testified  that  he  w^as  a  resident 
of  Shell )urne,  was  born  there  and  had  voted  there  for  twenty-four 
years,  and  had  been  a  representative  in  the  General  Court,  and 
that  he  lived  within  a  mile  and  a  half  or  two  miles  of  the  residence 
of  Mr.  WiMer's  father,  where  Mr.  Wilder  also  resided  ;  that  he 
knew  Mr.  Wilder   when  a  boy   at   school  in   the   town,  and  had 


FIELD    V,    WILDEH.       Sf:NATE,    ISfifi.  107 

known  him  since  ;  that  about  twelve  years  ago  Mr.  Wilder  left 
town,  he  being  then  about  twenty -one  years  of  age,  and  went  to 
New  Jerse}',  where  he  remained  teaching  school,  as  he  (the  witness) 
understood  tVom  members  of  his  family  and  from  a  letter  written 
by  liimself,  for  a  period  of  about  two  years  ;  that  Mr.  Wilder  then 
went  to  Illinois,  wliere  he  lived  until  the  summer  or  fall  of  186-') ; 
that  during  that  time  he  married  and  had  children  there  and  was 
elected  to  the  ofKce  of  justice  of  the  peace  in  the  town  of  Sublette, 
in  the  count}'  of  Lee  in  that  State,  and  was  commissioned  as  such 
for  the  term  of  four  years  from  the  thirtieth  day  of  April,  1857  ; 
that  he  served  as  a  commissioned  officer  from  that  State  during  tiie 
war;  that  in  the  summer  or  autumn  of  1863,  or  possibly,  in  the 
spring  of  that  year,  Mr.  Wilder  returned  with  his  famil}'  to  Shel- 
burne  and  has  since  resided  there  ;  that  his  name  appeared  on  the 
voting  list  of  that  town  in  18()3,  for  the  first  time,  and  that  he  did 
not  pay  a  tax  there  till  1864  ;  that  at  the  town  meeting  in  March, 
1864,  Mr.  AVilder  was  elected  moderator,  but  stated  that  he  was  not 
familiar  with  the  statutes  and  with  the  methods  of  doing  business 
in  this  State,  and  that  the  town  clerk  then  said  that  Mr.  Wilder  was 
not  eligible  to  that  or  an}^  other  office,  he  not  having  been  a 
resident  of  the  town  ;  that  thereupon,  without  taking  any  vote  upon 
accepting  Mr.  Wilder's  declination,  the  meeting  proceeded  to  elect 
the  witness  moderator. 

The  remonstrants  also  presented  a  certificate  from  the  secretary 
of  State  of  Illinois,  under  the  seal  of  the  State  ;  that  the  rec- 
ords of  his  office  show  that  Mr.  Wilder  was  commissioned  a  justice 
of  the  peace,  as  testified  to  by  Mr.  Fisk  ;  also  a  certificate  of  Pliny 
Fish,  chairman  of  the  board  of  selectmen  and  assessors,  that  it 
appears  from  the  valuation  books  of  the  town  of  Shelburne  that 
Mr.  Wilder  was  first  assessed  in  that  town  in  1864. 

The  remonstrants  offered  to  examine  Mr.  Wilder  as  a  witness, 
but  Mr.  Wilder  declined  to  be  examined,  and  the  remonstrants 
thereupon  rested  their  case. 

Mr.  Wilder  then  stated  that  he  did  not  propose  to  testify  him- 
self, or  to  introduce  any  evidence,  but  would  submit  the  case  to 
the  committee. 

The  committee  are  unanimously  of  opinion  that  Mr.  Wilder  was 
not  an  inhabitant  of  this  Commonwealth  for  the  five  years  immedi- 
ately preceding  his  election,  and  accordingly  report  the  accompa- 
nying Resolve. 

[The  Resolve  declared  the  seat  of  Mr.  Wilder  vacant.  The 
report  of  the  committee  was  accepted,  and  the  seat  of  Mr.  Wilder 
declared  vacant.     S.  J.  1866,  p.  492.] 


lO.S  MASSACUUtSETTS    ELECTION    CASES 1853-1885. 


HOUSE  — committed:    on    elections,    KSGG. 

Messr.s.  Gii.Ks  II.  AViiunky  ol  Wiucheiulou,  Chairman;  Timoiiiy  (i. 
Bk.\inkici>  of  Halifax,  Jamk.*^  W.  Bkkig.s  of  Aniesbiuy,  Ej>waki>  Hu.ky 
of  lio.><ton.  GKOKfiK  W.  Flktciiku  of  Dunstablo,  Ei'HUalm  B.  G.viks 
of  rainier  and  Thomas  Metcalk  of  Nortlilield. 


Loia:N/o   D.    Coggswell  v.  William   I.  McNeil. 

llou.so   Document,   No.  32.     January   26,    1866.      Report    by    Gii,es    H. 

Whitney,  Chairman. 

[In  tlii.s  case  the  committee  recounted  the  votes  for  lepiesentative 
in  the  twenty-third  Middlesex  district,  the  reasons  for  the  recount 
not  being  stated,  and  found  that  the  sitting  member  had  received 
VA)S  voles,  and  the  petitioner,  Lorenzo  D.  Coggswell,  580.  In 
addition  32  votes  were  found  to  have  been  cast  for  "■  L.  D.  Coo^srs- 
well,"  and,  upon  the  admission  of  the  sitting  member  that  these 
votes  were  undoubtedly  intended  for  the  petitioner  and  should  be 
counted  for  him,  the  committee  so  counted  them,  tinding  his  total 
vote  to  have  been  612.  The  committee  thereupon  reported  that  the 
petitioner  was  entitled  to  the  seat,  and  the  report  was  accepted. 
H.  .T.  18t;6,  J).   (>!.] 


Fkkdekic    Pease  et  al.   v.  Cromwell  G.  Kowell. 

House    Document,  No.    6,5.      February    8,    1866.      Kcport    by    Gili>    H. 

AVhitney,  Chairman. 

Publication  of  Solice  of  Petition  contesting  Election  not  required.  Publication  of 
iiotKT  of  a  petition  involving  the  election  of  a  representative  is  not  necessary  under 
the  Htatutc  requiring  the  publication  of  petitions  aflfecting  the  rights  or  interests  of 
indivKlualH  or  private  corporations. 

Eligibility  of  Representatives.  Inhabitancy.  Upon  the  issue  whether  the  represen- 
tative rciurne.l  as  elected  from  East  Boston,  had  been  an  inhabitant  of  die  district 
for  one  year  next  preceding  his  election  in  November,  I860,  it  appeared  thit  he  had 
formerly  resided  in  Boston;  was  in  the  army  in  1861;  returned  to  Boston  in  1862, 
living  with  h.b  father  in  ward  3,  or  boarding  in  wards  5  or  7,  until  the  summer  of 


PEASE    r.    KOWELL.       HOUSE,    18fi6.  109 

1864.  In  August  of  that  year  he  tried  to  get  a  house  in  East  Boston,  and  found 
a  boarding  place  there  into  which  he  was  about  to  move,  when  prevented  by  the 
closing  of  the  house  by  the  landlady.  He  afterwards  made  other  efforts  to  get  a 
place  in  East  Boston,  intending  to  live  there,  but  continued  to  board  with  his  wife 
in  ward  7,  until  early  in  January,  ISfJo,  where  he  found  and  took  a  house  in  East 
Boston,  in  which  he  resided  fi-om  that  time.  It  was  held,  that  he  had  not  been  an 
inhabitant  of  East  Boston,  for  one  year  next  preceding  his  election,  and  was 
ineligible. 

Charles  R.  Train  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Frederick  Pease  and  others,  legal  voters  of  the  second  Suffolk 
representative  district,  against  C,  G.  Rowell  holding  a  seat,  and  in 
favor  of  Wesley  A.  Gove  for.  the  same,  make  the  following 
report:  That  the  petition  sets  forth  that  Cromwell  G.  Rowell, 
now  holding  a  seat  in  your  honorable  body,  and  accredited  to  the 
second  Suffolk  district,  is  holding  said  seat  contrary  to  law,  inasmuch 
as  he  has  not  been  an  inhabitant  of  the  district  for  one  year  next 
preceding  his  election,  as  required  by  article  No.  21  of  the  amend- 
ment to  the  Constitution ;  and  the}*  further  represent  that  Wesley 
A.  Gove  was  duly  elected,  he  haAnng  the  next  highest  number  of 
votes,  and  should  be  deemed  and  declared  elected,  in  accordance 
with  article  No.  14  of  the  Constitution  aforesaid.  A  copy  of  the 
returns,  certified  b^'  Samuel  F.  McCleary,  the  city  clerk,  shows 
tliat  Samuel  Small  had  746,  John  B.  Ham  had  691,  Cromwell 
G.  Rowell  had  693  votes ;  Wesley  A.  Gove  had  554,  William 
Kurkett  532,  and  Charles  R.  McLean  517  votes;  and  there  were 
some  scattering  votes  ;  the  three  fii'st  named,  having  a  plurality'  of 
votes,  were  elected. 

At  the  hearing  of  the  petition  before  the  committee  the  evidence 
was  as  follows  :  In  behalf  of  the  petitioners,  S.  A.  Rice  testified 
tiiat  Col.  Rowell  moved  from  Boston  to  East  Boston,  into  the 
house  of  the  witness,  on  the  21st  day  of  January,  1865  ;  he  also 
testified  that  the  furniture  of  Col.  Rowell  was  brought  to  said  house 
on  the  20th  of  January,  1865.  Marvin  S.  Blood,  now  of  Maiden, 
formerly  of  Boston,  testified  that  Col.  Rowell  boarded  with  him  three 
or  four  months,  according  to  the  best  of  his  recollection,  prior  to 
the  21st  day  of  Januar}-,  1865,  at  No.  2  Columbia  Building,  in  the 
city  of  Boston,  and  that  on  said  21.st  day  of  January  he  left  his 
house. 

The  testimony  of  Mr.  Rowell  in  his  own  behalf  was  as  follows  : 
That  he  came  to  live  in  the  city  of  Boston  in  1852  or  1853  ;  that 
lie  came  to  work  at  his  trade  of  tin-plate  worker,  and  brought  his 
wife  with  him  to  Boston,  and  kept  house  about  six  3'ears  aftei-  he 
came  to  the  city  to  live  ;  that  he  voted  in  the  city,  and  was  an 


lln     MASSACHUSETTS  ELECTION  CASKS 1853-18Sr,. 

inspector  in  18o4  or  1855,  in  what  was  formel}'  ward  3  and  held 
the  office,  as  he  thought,  about  two  years  (although  the  witness 
was  not  certain  as  to  the  time),  and  was  appointed  on  the  police 
in  1854,  according  to  the  recollection  of  the  witness,  and  served  on 
the  police  about  seven  years,  or  until  the  breaking  out  of  the  war  ; 
that  on  the  brealving  out  of  the  war  he  resigned  his  position  on  the 
police,  and,  with  others,  raised  a  regiment,  and  went  as  lieutenant- 
colonel  of  the  ninth  Massachusetts  volunteers  ;  that  his  wife  died  in 
18G0.  and,  from  the  time  of  his  wife's  death  to  the  time  of  his  going 
out.  Col.  Rowell  boarded  ;  that  he  sailed  from  Boston  June  25. 
18G1,  and  returned  to  Boston  the  early  part  of  the  spring,  or  the 
latter  part  of  the  winter  of  1862.  While  he  was  in  the  service, 
C'ol.  Rowell  married  again.  The  witness  stated,  that  for  about 
a  year  after  returning  to  Boston,  it  was  his  intention  to  return  to  the 
service  ;  he  was  in  no  business  for  eight  or  ten  months  or  so,  and 
lived  on  his  friends  for  about  sis  weeks  in  ward  1,  and  then  he 
and  his  wife  went  to  his  father's,  who  lived  in  ward  3,  and  stayed 
there  until  early  in  the  following  spring.  Previous  to  leaving  his 
father's  house,  he  had  entered  the  employ  of  Pond  &  Dunklee,  87 
Blackstone  Street.  After  leaving  his  father's  house  in  the  spring, 
he  went  to  V)oard  at  the  corner  of  Leverett  and  Causeway  Streets, 
in  ward  5.  The  witness  said  that  he  was  looking  for  a  house  all 
this  time,  and  assigned  this  fact,  as  a  reason  why  he  changed  so 
often.  He  then  left  the  corner  of  Leverett  Street,  and  went  to  a 
house  a  few  doors  below,  and  had  a  room,  and  boarded  three  or 
four  doors  below  his  room  where  he  lived.  The  witness  left  there, 
and  went  to  Minot  Street,  in  ward  5  ;  his  father  was  away,  and  his 
mother  was  sick,  and  wished  him  to  come  and  take  care  of  her,  and 
keep  her  company,  and  the  witness  went ;  the  house  was  in  ward 
3.  He  remained  there  several  m  )nths,  but  did  not  know  how  long, 
and  from  there  went  to  the  house  of  Mr.  Blood,  some  time,  as  the 
witness  thought,  in  November,  1864,  in  Columbia  Street,  ward  7. 
Tiie  witness  further  stated  that  his  goods  were  stored  most  of  the 
time.  In  the  summer  of  1864,  some  time  in  August,  some  friends 
o(  the  witness  in  P:ast  Boston  sent  word  to  him  that  they  thought 
that  tiiey  could  get  board  for  him  on  Meridian  Street,  East  Boston, 
that  they  thought  would  suit  him.  He  had  been  looking  for  a 
house  in  Hast  Boston  several  months  previous  to  that,  and  had 
Ijcen  determined  for  several  months  previous  to  that  to  take  a 
house  in  East  Boston  for  the  purpose  of  making  East  Boston  his 
home,  or  place  of  residence.  The  witness  went  to  East  Boston 
and  looked  at  the  house,  and  liked  the  place  very  well,  and  engaged 
board  with  the  people  for  himself  and  wife.  This  was  in  July  or 
August ;  he  was  then  at  his  father's  house.     He  was  to  furnish  his 


PRASE    r.    POWELL.       HOtTSE,    ISC,6.  Ill 

own  room,  and  sent  over  his  carpets  for  that  purpose  ;  he  sent  be- 
sides the  carpets,  one  of  his  trunks  containing  wearing  apparel, 
and  in  reply  to  his  counsel,  3Ir.  Train,  he  said  that  he  did  not  send 
any  bed,  bedstead,  or  bureau,  at  that  time  ;  he  wanted  to  get  his 
carpet  down,  and  before  he  had  an  opportunity  of  sending  the  bal- 
ance of  his  goods  which  he  intended  to  send  a  few  days  afterwards, 
some  member  of  the  lady's  family,  with  whom  he  wished  to  board, 
was  taken  sick  (a  married  daughter  down  East),  and  required  her 
mother's  presence  ;  the  daughter  whom  the  witness  saw,  when  he 
saw  the  house,  came'  over  ;  he  had  his  things  then  packing  ;  those 
that  he  intended  to  leave,  he  was  then  packing  away,  and  was 
about  ready  to  go  over,  and  informed  him  that  it  would  not  be 
possible  to  take  them  to  board  just  then  ;  consequently,  the  pro- 
ject had  to  be  abandoned  for  a  time.  When  he  had  sent  his  thines 
to  East  Boston,  he  had  forgotten  the  number  of  this  house. 
Accordingly,  he  sent  the  teamster  to  his  friend  Mr.  Grover,  to  o;et 
directions  from  him  where  to  carry  the  goods.  When  the  pro- 
gramme was  changed,  and  by  this  expression,  the  witness  explained 
when  the  lady  informed  him  that  he  could  not  come  there  just 
then,  he  got  Mr.  Grover,  or  some  member  of  his  family,  to  take 
these  things  to  their  house,  or  somewhere  for  the  time. 

In  answer  to  an  inquiry  by  his  counsel,  for  what  purpose,  the 
witness  replied  that  he  intended  to  see  if  he  could  not  find  some 
other  place  in  East  Boston  where  he  could  board  a  time.  Shortly 
after  that,  word  was  sent  to  Col.  R.,  from  Mr.  Grover's  family, 
that  they  knew  of  a  cottage  house  on  Meridian  Street,  or  near 
Meridian  Street.  The  wife  of  Col.  R.,  and  Mrs.  Grover,  at  his 
request,  Mrs.  Grover  being  acquainted  with  the  wife  of  the  land- 
lord who  owned  this  estate,  called  on  her  to  get  the  refusal  of  this 
house.  This  was  shorth*  after  sending  his  things  over  there.  He 
did  not  remember  exactly  the  time  —  along  in  October  the  witness 
thought  — and  that  it  was  l>efore  he  went  to  Blood's  to  board. 
According  to  the  representation  of  the  landlord,  who  owned  the 
house,  a  family  occupied  it  at  the  time,  and  had  occupied  it  for 
some  time,  who,  through  some  reason,  had  failed  to  pay  their 
rent,  and  he  wished  to  get  them  out,  but  did  not  desire  to  take 
any  measures  to  get  them  out,  because  he  held  the  family,  except 
the  head  of  the  family,  in  high  respect.  The  witness  waited 
awhile,  but  they  did  not  go.  Mr.  Blood,  the  witness  called  for  the 
petitioners,  worked  for  Pond  &  Dunklee  ;  and  he  and  Col.  R. 
being  friends,  he  thought  he  would  take  up  his  abode  with  him 
temporarily,  still  waiting  for  this  house.  The  witness  and  his 
wife  were  visiting  back  and  forth  in  East  Boston,  throughout  all 
the  time.     The  wife  of  the  witness  was  in  East  Boston  one  day, 


112  MA8i?ACHU!^ETTS    ELECTION    CASES 1853-1885. 

aiul  Mr.  Rice  informed  her  that  there  was  a  house  vacant  there, 
■uul  it  would  be  at  hand  if  the  other  house  should  be  vacated,  and 
i„  the  mean  time,  some  other  liouse  might  turn  up,  which  might 
suit  as  well.  The  witness  went  to  see  Mr.  Rice,  and  he  was  not 
at  home,  but  he  got  the  refusal  of  the  house  from  his  wife,  in  the 
..arlv  part  of  January,  1865,  and  a  few  days  after,  sent  over  his 
thin"t?s.  He  lived  in  Mr.  Rice's  house  about  three  months,  and 
then''  moved  to  the  house  which  he  now  occupies.  The  witness 
stated  that  the  house  he  now  occupies  was  not  the  house  he  was  in 
pursuit  of  in  the  fall  of  1864,  for  he  became  satisfied  that  the  sis- 
ter of  the  landlord  wanted  it,  and  would  be  more  likely  to  obtain 
it  than  he,  and  was  suited  with  this  house,  and  moved  into  it. 

A.  C.  Grover  testified  that  he  lived  in  East  Boston,  in  the  sum- 
mer of  1864,  and  that  in  July  or  August,  1864,  there  were  deliv- 
ered at  his  house,  one  or  two  trunks  belonging  to  Col.  Rowell,  and 
the  witness  did  not  remember  which,  and  a  roll  of  carpeting,  and 
tliat  be  took  care  of  the  goods  until  they  were  delivered,  on  the 
evening  of  the  same  day,  at  Mrs.  Pillsbury's,  on  Meridian  Street, 
where  Col.  Rowell  intended  to  board,  and  as  Col.  Rowell  could  not 
1).'  accommodated  at  the  house  of  Mrs.  Pillsbury,  the  goods  were 
retiu-ned  to  his  house,  where  the  witness  saw  them  a  day  or  two 
after.  l)ut  did  not  know  what  became  of  them  afterwards. 

Before  the  evidence  was  put  in,  it  was  claimed  in  behalf  of  Mr. 
Howell,  that  as  no  notice  had  been  given,  in  accordance  with  the 
provisions  of  tlie  8th  section  of  the  2d  chapter  of  the  General 
Statutes,  the  committee  ought  not  to  proceed.*  The  point  was 
reserved  for  the  consideration  of  the  committee  and  to  be  reported 
to  the  house;  but  the  eommittee,  after  careful  reflection,  are  of 
opinion  that  the  provisions  of  the  statute  in  relation  to  notice  were 
not  designed  for  election  cases.  In  point  of  fact.  Col.  Rowell  had 
the  most  ample  notice,  and  was  fully  heard  before  the  committee, 
and  every  opportunity'  was  afforded  him  to  present  the  full  merits 
of  his  ease.  The  committee,  in  this  connection,  cite  the  law  upon 
this  subject,  as  laid  down  in  Law  and  Practice  of  Legislative 
Assemblies,  by  L.  S.  Cushing. 

"  An  iii(|uirv  into  the  rights  of  a  member  to  his  seat,  may  be  brought 
forwartl  in  tiic  first  instance,  either  by  the  motion  of  a  member,  or  by 
the  petition  oC  :i  party  interested ;  or  it  may  arise  from  an  examination 
of  the  rctiuns."—  Part  1,  chap.  20,  sect.  1,  par.  248. 

"  It  is  undoubtedly  competent  to  a  legislative^  assembly  to  institute 
in<^uirii!s  n^Uitive  to  the  rights  of  its  members,  of  its  own  mere  motion, 

•  Sul."-UiiUiiilly,  I'ub.  Stats,  cliap.  2,  J  5,  — for  which  chapter  24  of  the  Acts  of 
liiOO  has  been  substituted. 


PEASE      .    ROWELL.       HOUSE,    1866.  113 

and  without  the  intervention  of  any  complaint  on  the  part  of  the  electors 
or  of  one  claiming  a  seat,"  etc.  —  Par.  149th  of  the  same,  Part  2. 

Upon  the  evidence  it  was  contended,  in  behalf  of  Mr.  Rowell, 
that  as  he  was  an  inhabitant  of  one  of  the  wards  of  Boston  prior 
to  his  going  to  East  Boston,  that  he  was,  in  legal  contemplation,  an 
inhabitant  of  every  part  of  the  city  of  Boston,  and  hence  eligible 
for  East  Boston  ;  but  the  language  of  the  21st  amendment  to  the 
Constitution  is  as  follows  :  — 

"  P2very  representative,  for  one  year  at  least  next  preceding  his  elec- 
tion, shall  have  been  an  inhabitant  of  the  district  for  which  he  is  chosen, 
and  shall  cease  to  represent  such  district  when  he  shall  cease  to  be  an 
inhabitant  of  the  Commonwealth." 

The  committee  have  no  doubt  that  under  the  provisions  of  the 
Constitution  Col.  Rowell  must  have  been  an  inhabitant  of  East 
Boston,  the  district  for  which  he  is  chosen,  for  one  year,  at  least, 
prior  to  the  election  in  November,  1865. 

It  was  further  contended,  that  upon  the  facts  shown.  Col.  Rowell 
had  a  domicile,  one  year  previous  to  the  election  in  November  last, 
in  East  Boston. 

The  law  applicable  to  the  case  is  here  cited  :  — 

"  An  inhabitant,  or  i-esident,  is  a  person  coming  into  a  place  with  an 
intention  to  establish  his  domicile  or  permanent  residence,  and  in  conse- 
quence actually  resides ;  under  this  intention,  he  takes  a  house,  or  lodg- 
ings, as  one  fixed  or  stationary,  and  opens  a  store,  or  takes  any  step 
pi'eparatory  to  business,  or  in  execution  of  this  settled  intention." 
—  United  States  v.   The  Penelope,  2d  Peters''  Admiralty  Decisions,  450. 

"  It  is  difficult  to  give  an  exact  definition  of  habitancy.  In  general 
terms,  one  may  be  designated  as  an  inhabitant  of  that  place  which  con- 
stitutes the  principal  seat  of  his  residence,  of  his  business,  pursuits,  con- 
nections, attachments,  and  of  his  political  and  municipal  relations.  It  is 
manifest,  therefore,  that  it  embraces  the  fact  of  i-esidence  at  a  place, 
with  the  intent  to  regard  it  and  make  it  his  home.  The  act  and  intent 
was  to  concur,  and  the  intent  may  be  inferred  from  declarations  and 
conduct."— S/mw,  C.  J.,  117  Pick.,  p.  234. 

The  law  of  domicile  is  discussed  in  many  other  cases,  but  it  was 
not  thought  best  to  encumber  the  report  by  an}'  more  citations. 
All  the  material  portions  of  the  e\adence  are  herewith  reported,  so 
that  Col.  Rowell  may  have  the  benefit  of  it  in  any  discussion  that 
may  ensue  in  the  house. 

It  is  hoped  and  believed,  that  nothing  material  to  either  party 
has  been  omitted  in  the  report  of  the  evidence. 

The  committee  are  of  the  opinion,  that  whatever  ma}'  have 
been  the  intent  of  Col. Rowell,  he  had  not  acquired  a  domicile  in 


114  MASSACHUSETTS    ELECTION    CASES 18o3-188o. 

E.'ist  Uoston  one  year  previous  to  the  election  in  November  last. 
To  use  the  language  of  Shaw,  C.  J.,  in  the  case  last  cited,  "-tlie 
act  ami  iutnd  vu.st  concnrr  And  in  Col.  R.'s  case,  the  committee 
think  that  the  act  and  intPiit  did  not  concur,  and  are  unanimously 
of  the  opinion  that  Col.  Howell  is  not  entitled  to  his  seat,  being 
ineligible  thereto. 

[The  committee  also  reported  that  the  petitioner  was  entitled  to 
the  seat,  and  reported  a  resolution  to  that  eflfect.  The  house  re- 
jected an  amendment  to  the  resolution,  to  the  effect  that  Mr.  Rowell 
was  eligible,  by  a  vote  of  35  yeas  to  163  nays,  and  then  adopted 
an  amendment  declaring  the  seat  vacant,  and  the  resolution  as  so 
amended  was  adopted.  H.  J.  1866,  p.  128.  —  A  precept  for  a  new 
election  to  fill  the  vacancy  w^as  ordered,- and  at  that  election  Mr. 
Kowell,  being  then  eligible,  was  again  elected,  and  qualified.] 


David  Thayer  et  al.*v.  George  A.  Shaw  et  al. 

House  Document,  No.  67.     February  9,  1866.     Report  byT.  G.  Brainerd. 

[In  this  ease  the  votes  for  representatives  were  recounted  without 
any  statement  of  the  reasons,  the  recount  showing  that  the  sitting 
members  were  elected.  The  petitioners  claimed  that  certain  voters 
were  unable  to  read  and  write,  that  others  liad  not  resided  the 
required  period  in  the  Commonwealth  or  city  to  qualify  them  as 
voters,  and  that  others  had  not  paid  the  required  tax.  Five  votes 
for  the  petitioners  were  found  by  the  committee  to  have  been  cast 
by  persons  who,  not  having  paid  the  required  tax,  were  not  quali- 
fied voters,  and  these  votes  were  deducted  from  the  vote  returned 
for  them.  The  leport  of  the  committee  that  the  petitioners  have 
leave  to  withdraw  was  accepted.  H.  J.,  1866,  p.  120.  As  the  case 
involved  only  questions  of  fact,  it  is  not  of  value  as  a  precedent. 
J.  Q.  A.  Griffin  appeared  for  the  petitioners,  and  A.  A.  Ranney 
for  the  sitting  members.] 


BIRD    V.    MERRICK.       HOUSE,    1866.  115 


Francis  W.  Bird  v.  John  M.  Merrick. 

House   Dociuiieut,  No.  128.      February  27,  1866.      Report  by  Giles  H. 

Whitney,  Chairman. 

Constable  de  facto  can  serve  Notice  of  Town  Meeting  for  Election.  Where,  from  the 
refusal  of  a  person  elected  as  constable  in  town  meeting  to  accept  the  office,  the 
question  arises  whether  a  vacancy  exists  in  the  office,  so  that  the  selectmen  can  fill  it 
by  appointment,  or  whether  the  former  incumbent  holds  over,  and  the  selectmen 
proceed  to  make  an  appointment,  and  the  person  so  appointed  assumes  the  duties  of 
the  office,  such  person  is  at  least  a  constable  de  facto,  and  as  such  can  serve  the  war- 
rant for  the  town  meeting. 

Notice  of  Meeting  for  Election.  An  election  will  not  be  set  aside  where  full  notice, 
as  required  by  the  vote  of  the  town,  has  been  given,  merely  because  such  notice 
may  have  been  served  by  a  person  who  was  not  de  jure  a  constable. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  F.  W.  Bird  of  Walpole,  representing  that  the  meeting  for  the 
election  of  State  officers,  in  the  town  of  Walpole,  in  November 
last,  had  been  illegall}'  warned  and  held,  and  that  the  proceedings 
at  said  meeting  were  null  and  void,  and  that  the  votes  east  in  said 
town  of  Walpole,  for  representative  to  the  General  Court  from  the 
eleventh  Norfolk  representative  district,  were  illegal,  and  that  the 
election  of  John  M.  Merrick  of  Walpole,  depending  upon  said 
votes,  he,  the  said  John  M.  Merrick,  is  not  entitled  to  his  seat, 
and  that  the  petitioner,  who  is  one  of  the  two  persons  voted  for, 
who  received  the  highest  number  of  votes  legally'  cast  iii  the  afore- 
said district,  is  legally  elected  one  of  the  representatives  from 
said  district,  and  is  entitled  to  the  seat  now  held  by  the  said  John 
M.  Merrick,  having  fully  considered  the  same,  make  the  following 
report : 

That  the  inhabitants  of  Walpole  were  notified  and  warned  to 
meet  for  the  election  of  State  oflicers,  in  November  last,  by  one 
James  G.  Scott,  who  undertook  to  act  as  constable  of  Walpole  for 
that  purpose,  and  whose  return  shows  that  he  gave  notice  of  said 
meeting,  in  conformity  with  the  vote  of  the  town  at  the  March 
meeting,  1865,  in  relation  to  warning  town  meetings,  but  whose 
authority  as  constable, —  either  as  constable  dejure  or  constable  de 
facto, —  is  denied  by  the  petitioner.  At  the  annual  meeting  of  the 
town  of  Walpole,  held  by  adjournment,  April  4,  1864,  Nathaniel 
Bird  was  chosen  constable,  and  was  sworn  by  the  moderator. 

At  the  annual  meeting  of  the  town  of  Walpole,  held  March  6, 
1865,  it  was  voted,  article  13th:  That  for  warning  all  town  meet- 


IK)  MASSACHUSETTS   ELECTION   CASES 1853-1885- 


m 


...2s,  the  constable  be  required  to  post  up  an  attested  copy  of  the 
warrant  at  each  of  the  public  meeting-houses,  and  at  each  of  the 
post-offices  in  the  town,  seven  days,  at  least,  before  said  meeting. 

At  the  above  named  meeting,  held  by  adjournment  April  3, 
1.S65,  the  town  voted  to  choose  three  selectmen,  three  assessors, 
and  three  overseers  of  the  poor,  a  town  treasurer,  constable,  school 
committee  and  collector,  all  on  one  ballot.  Joseph  Whitehouse 
was  chosen  constable,  but  immediately  after  being  chosen,  declined 
in  open  town  meeting  to  accept  the  office.  Several  witnesses, 
including  the  petitioner,  testified  as  to  the  time  when  Mr.  White- 
house  declined.  Mr.  F.  W.  Bird  was  confident  that  he  declined 
before  4  o'clock  in  the  afternoon.  Nathaniel  Bird,  called  by  the 
petitioner,  thought  that  it  was  after  5  o'clock,  when  he  declined  ; 
and  the  weight  of  the  evidence,  in  the  judgment  of  the  committee, 
is  that  it  was  as  late  as  o  o'clock  when  he  declined.  The  evidence 
upon  this  point  is  stated  somewhat  fully,  as  there  was  much  efi'ort 
made  to  show  the  precise  time  of  Mr.  Whitehouse  declining, 
although  the  committee,  in  the  view  that  they  have  taken  of  the 
case,  do  not  consider  the  evidence  material. 

Two  witnesses  testified  that  the  moderator  of  the  meeting  gave 
as  a  reason  for  not  calling  for  another  balloting  for  constable, 
after  the  declination  of  Mr.  Whitehouse,  that  there  would  not  be 
time  to  elect  a  constaV)le  before  sunset. 

On  the  day  of  the  adjourned  meeting,  being  the  3d  da}'  of  April. 
the  town  clerk  of  Walpole,  in  conformity  with  the  provisions  of 
the  General  Statutes,  made  out  a  list  of  officers  chosen  at  the 
meeting,  of  whom  an  oath  was  required,  and  placed  it  in  the  hands 
of  Mr.  Nathaniel  Bird  —  the  constable  chosen  in  1864  —  for  ser- 
vice. Mr.  Whitehouse's  name  was  on  the  list,  and  against  his 
name  was  the  word  constable  ;  and  it  appeared  by  the  return  of 
tlie  constable,  Mr.  Bird,  dated  April  6th,  that  he  duly  notified  Mr. 
"Whitehouse  to  appear  before  the  town  clerk  and  take  the  oath  of 
office  ;  and  it  appeared  by  the  return  of  the  town  clerk,  that  other 
individuals  whose  names  were  on  the  list  and  who  had  been  sum- 
moned to  appear,  did  appear  and  take  the  oath  of  office,  but  Mr. 
^^'hitehouse's  name  is  not  among  the  number. 

Mr.  Natlianiel  Bird  testified  that  Mr.  Whitehouse  said,  when  he 
(Bird)  notified  him  to  appear  and  take  the  oath  as  constable,  that 
he  should  not  accept  the  office. 

On  the  13th  day  of  April,  1865,  Mr.  Scott  was  appointed  con- 
stable by  the .  selectmen  of  Walpole,  by  a  writing  under  their 
hands ;  and,  as  this  appointment  is  somewhat  material  in  consid- 
ering this  question,  a  transcript  of  the  appointment  is  here  given  :  — 


BiKD  V.  :mi:i;i;ick.     TrousE,   isgg.  117 

"  To  James  G.  Scott,  of  the  town  of  Walpole  : 

"  Whereas,  the  office  of  constable  for  the  town  of  Walpole  aforesaid 
has  become  and  now  is  vacant,  by  the  refusal  of  Joseph  Whitehouse  to 
take  the  oath  of  office,  —  who  was  duly  chosen  at  the  annual  town 
meeting,  holden  on  the  third  day  of  April,  in  the  year  eighteen  hundred 
and  sixty-five, — 

"  Now,  be  it  known,  we,  James  G.  Scott,  James  H.  Leland  and  James 
P.  Tisdale,  selectmen  of  the  town  aforesaid,  hereby  apjioint  you  consta- 
ble of  Walpole  aforesaid,  for  the  year  ensuing.     Datt^  of  the  appoint- 
ment, April  13th,  1865. 
"The  appointment  is  signed  by 

"James  P.  Tisdale, 
"  James  H.  Leland, 

Selectmen  of  Walpole.'''' 

On  the  24th  day  of  April,  1865,  Mr.  Scott  was  sworn  to  the 
faithful  discharge  of  his  duties  as  constable.  Mr,  Nathaniel  Bird 
testified,  that  he  had  never  declined  acting  as  constable ;  and 
since  the  13th  of  April  last,  he  had  made  service  of  writs;  he 
thought  between  the  13th  of  April  and  the  November  election,  but 
was  not  confident  as  to  the  time  when  he  served  the  writs.  He 
also  served  a  venire  for  the  December  term,  1865,  of  the  superior 
court  at  Dedham,  and  for  the  February  term,  1866,  of  the  supreme 
court  at  the  same  place. 

Mr.  Scott  testified,  that  he  served  a  warrant  for  the  town  meet- 
ing in  June  last,  called  "to  see  if  the  town  will  vote  to  pay  and 
refund  money  expended  by  the  selectmen,  or  contributed  by  indi- 
viduals in  aid  of  and  for  the  purpose  of  filling  its  quotas,  or  furnish- 
ing men  for  the  present  war." 

Mr.  Scott  also  served  a  warrant  for  a  meeting  for  the  first  parish 
in  Walpole,  and  the  meeting  was  held  before  the  town  meeting  in 
June  last ;  he  also  served  a  venire  for  the  September  term  of  the 
superior  court  at  Dedham,  and  a  venire  for  the  October  term  of  the 
circuit  court  of  the  United  States  at  Boston,  and  also  served,  as 
before  stated,  the  warrant  for  the  November  meeting  for  the  elec- 
tion of  state  officers.  Mr.  Scott  never  served  any  writs,  and  was 
not  qualified  so  to  do  hy  giving  bonds,  and  did  not  qualify  himself, 
as  he  did  not  desire  to  serve  writs. 

The  law  applicable  to  the  case  is  here  cited  :  — 

"'  Every  town  meeting  shall  be  held  in  pursuance  of  a  war- 
rant under  the  hands  of  the  selectmen,  directed  to  the  constables 
or  some  other  person  appointed  by  the  selectmen  for  that  purpose, 
who  shall  forthwith  notify-  such  meeting  in  the  raanher  prescribed 
by  the  by-laws,  or  by  a  vote  of  the  town, " —  Gen.  Stats.,  chap.  IS^ 
sect.  21.* 

*  J^ow  Pub.  Statg.,  chap.  27,  §  54. 


118  M  \>-\(nrSETTS   ELECTION   CASES 1853-1885. 

"  At  the  annual  meeting,  ever}'  town  shall  choose  from  the  inhabi- 
tants thereof  the  following  town  officers,  who  shall  serve  during  the 
year,  and  until  others  are  chosen  and  qualified  in  their  stead. " 
Constables  are  designated  as  officers  to  be  chosen  under  this  pro- 
vision.— Same,  sect.  31.* 

"•  Every  person  chosen  constable  shall,  if  present,  forthwith 
declare  his  acceptance  or  refusal  of  the  office.  If  he  does  not 
accept,  the  town  shall  proceed  to  a  new  election  until  some  one 
accepts  tlie  office,  and  takes  the  oath.  "—Same,  sect.  S3.j 

"■  When  a  vacanc}-  occurs  in  a  town  office  by  reason  of  the  non- 
acceptance,  death,  removal,  insanity,  or  other  disability,  of  a  per- 
son chosen  thereto,  or  by  reason  of  a  failure  to  elect,  the  town  may 
fill  such  vacancy  by  a  new  choice  at  any  legal  meeting.  " — Same, 
sect.  43.1 

Chapter  174  of  the  Acts  of  1864§  provides  that  "  whenever  a 
vacancy  occurs  in  the  office  of  highway  surve3'or,  fence-viewer, 
constable  or  field-driver,  in  any  town,  the  selectmen  thereof  ma}', 
in  their  discretion,  appoint  some  suitable  person  to  fill  the  vacancy." 

It  was  contended  by  the  counsel  for  the  petitioner  that  there 
was  no  vacancy,  Mr.  Nathaniel  Bird  holding  over,  and  that  the 
selectmen  had  no  authority  to  appoint,  and  that  Mr.  Scott  was 
neither  de  jure,  or  de  facto,  constable.  It  was  contended  b}' the 
counsel  for  the  sitting  member  that  there  was  a  vacanc3\  and  that 
Mr.  Scott  was  dejure  and  de  facto  constable.  The  committee  were 
favored  with  the  opinions  of  other  legal  gentlemen,  learned  in  the 
law,  who  had  been  consulted  as  to  the  legality  of  Mr.  Scott's 
apitointraent  as  constable,  but  it  seemed  that  the  learned  gentle- 
men who  were  consulted  did  not  agree  in  opinion.  The  committee 
being  of  the  opinion'that  Mr.  Scott  was  "  de  facto  "  constable,  have 
not  thought  it  necessary  to  decide  whether  Mr.  Scott  was  "  de 
jure "  constable  or  not.  In  this  connection  the  opinion  of  Bige- 
low,  C.  J.,  in  Fitch  burg  Railroad  Company  v.  Grand  Junction 
Railroad  and  Depot  Company,  1  Allen,  p.  557,  as  to  what  con- 
stitutes an  office  "  de  facto"  is  cited.  "  The  precise  definition  of 
:in  officer  de  facto  is  one  who  comes  in  by  the  forms  of  law,  and 
acts  under  a  commission  or  election  apparently  valid,  but  in  con- 
sequence of  some  illegality,  incapacity  or  want  of  qualification,  is 
incapable  of  lawfully  holding  the  office.  The  exact  distinction 
l)etween  an  usurper  or  intruder  and  an  officer  de  facto  is  this  :  the 
formPT  his  no  rr.h>r  of  title  to  the  office;  the  latter  has,  by  virtue  of 

*  Now  snbstiintially  Pub.  Stats.,  chap.  27,  §  78. 
t  Now  Pub.  Stats.,  chap.  27,  $  81. 
X  See  Pub.  Stats.,  chap.  27,  §  93. 
^  Now  Pub.  Stats.,  chap.  27,  f  86. 


BIKD    V.    3IERKICK.       HOUSE,    1SG6.  119 

some  appointment  or  election.'''  Now,  Mr.  Scott  was  not  an  usurper 
or  intruder  ;  he  had  color  of  title  to  the  office,  by  virtue  of  the  appoint- 
ment from  the  selectmen.* 

The  committee  are  of  the  opinion  that  the  selectmen  acted  hon- 
esth-  in  appointing  Mr.  Scott  constabl'e,  as  did  Mr.  Scott  in  receiv- 
ing  the  appointment  and  acting  under  it. 

No  evidence  was  offered  to  siiow,  and  it  was  not  pretended  on 
the  part  of  the  petitioner,  that  the  notice  for  the  meeting  in  Nov- 
ember was  not  full,  and  in  conformity  with  the  vote  of  the, town  in 
reference  to  warning  town  meetings,  or  that  the  vote  was  in  any 
degree  altered,  from  the  fact  that  Mr.  Scott,  instead  of  Mr.  Na- 
thaniel Bird,  or  an}'  other  individual,  had  warned  the  meeting. 

The  committee  are  unanimously  of  the  opinion  that  the  will  of 
the  people,  when  thus  fairly  ascertained,  should  not  be  set  aside, 
and  report  that  the  petitioner  have  leave  to  witlidraw. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1866,  p. 
185.] 

*  [Note  by  the  Editors.  The  decision  of  the  committee  that  the  acts  of  a  de 
facto  officer,  in  connection  with  an  election,  are  valid,  and  that  his  authority  to  act 
cannot  be  questioned  in  a  contest  over  the  result  of  the  election,  is  sustained  Ijy  the 
decisions  of  the  court.  In  Petersilea  \.  Sto7ie,  119  Mass.  4C.i,  the  court  held  that, 
where  notice  of  an  intention  to  take  the  poor  debtor's  oath  was  served  by  a  person 
whose  term  of  office  as  constable  had  expired,  hut  who  was  generally  known,  acted, 
and  advertised  himself  as  a  constable,  the  service  was  made  by  a  de  facto  constable, 
and  was  valid  ;  the  court  saying: — "  If  Farr  was  an  officer  de  facto,  the  validity  of 
the  service  by  him  of  the  notice  to  take  the  poor  debtor's  oath  cannot  be  inquired 
into  collaterally.  In  order  to  show  that  he  was  not,  the  plaintiff  relies  upon  the 
statement  of  Bigelow,  C.  J.,  in  Fitchbury  Railroad  v.  Grand  Junction  Railroad,  1 
Allen,  .").52,  55",  that '  the  exact  distinction  Ijetween  an  usurper  or  intruder,  and  an 
officer  de  facto,  is  this  :  the  former  has  no  color  of  title  to  the  office;  the  latter  has, 
by  virtue  of  some  appointment  or  election.'  If  this  were  intended  as  a  general  defi- 
nition of  an  officer  de  facto,  it  would  be  incomplete ;  but  the  inquiry  there  presented 
to  the  court  was  as  to  the  validity  of  certain  acts  done  by  one  who  acted  under  a 
commission  prima  facie  valid,  and  issued  by  an  authority  apparently  empowered  to 
invest  him  with  the  legal  rights  and  powers  of  the  office  to  which  he  was  appointed, 
and  it  is  to  be  limited  to  the  case  then  before  the  court.  The  reason  of  public  policy, 
upon  which  it  is  held  that  the  acts  of  an  officer  de  facto  are  not  to  be  called  in  ques- 
tion collaterally,  but  are  valid  as  to  third  persons,  may  apply  even  to  the  case  where 
such  officer  is  a  usurper  and  intruder.  This  principle  has  been  applied,  in  Eng- 
land, to  the  most  important  office.  After  Edward  IV.  obtained  the  crown,  the  kings 
of  the  line  of  Lancaster,  who  had  preceded  him,  were  spoken  of  as  '  nuperde  facto  et 
non  dejure  reges  Angliae ;'  but  although  Henry  VI.  had  been  declared  a  usurper  by 
act  of  Parliament,  attempts  against  his  authorit.v  (not  having  been  in  aid  of  the 
rightful  king)  were  capitallj'  punished.  Third  persons,  from  the  nature  of  the  case, 
cannot  always  investigate  the  right  of  one  assuming  to  hold  .an  important  office,  even 
so  far  as  to  see  that  he  has  color  of  title  to  it  by  vi)tiie  of  some  appointment  or  elec- 
tion. If  they  see  him  publiclj'  exercising  its  authorit}',  if  they  ascertain  that  this  is 
generally  acquiesced  in,  they  are  entitled  to  treat  him  as  such  officer,  and  if  they 
employ  him  as  such,  should  not  be  subjected  to  the  danger  of  having  his  acts  col- 
laterally called  in  question.    If  the  party  thus   recognizing  the  officer  de  facto  were 


120  MASSACIIUt^ETTS   ELECTION   CASES  —  1853-1885. 

aware  that  such  officer  had  some  appointment  or  election,  it  would  strengthen  his 
belief,  Itiit  without  this  he  would  be  justified  in  believing  that  an  authority  publicly 
exercised  and  assented  to  was  rightfully  assumed.  The  definition  of  an  officer  do 
facto,  as  given  by  Lord  Ellenborough  in  The  King  v.  Bedford  Level,  6  East,  356, 
which  he  generalizes  from  that  of  Lord  Holt  in  Parker  v.  Kctt,  1  Ld.  Raym.  658,  660, 
is  'one  who  has  the  reputation  of  betng  tlie  officer  he  assumes  to  be,  and  yet  is  not  a 
good  officer  in  point  of  law;'  .and  the  above  suggestions  are  in  accordance  with  this 
delinition.  .  •  -It  was  shown  In  the  present  case  that  Farr  was 

•  notoriously  acting '  as  constable ;  having  an  office  in  Boston,  and  upon  its  door  his 
name,  with  the  addition  of  the  word  'CQustable; '  and  as  to  third  persons  he  must  be 
deemed  an  officer  de  facto."  See,  also,  to  the  effect  that  the  official  acts  of  a  de  facto 
constal)lc  are  valid,  Doty  v.  Graham,  »  Pick.  487;  Elliott  v.  Willis,  1  Allen,  461. 
In  Coolidge  v.  Brigham,  1  Allen,  333,  335,  the  court  says  : — "  No  rule  of  law  is  more 
firmly  established  than  that  which  gives  to  the  acts  of  such  an  officer  the  same 
cfficjicy  and  validit}',  so  far  as  they  aflfect  third  parties,  as  to  those  done  by  an  officer 
dfjurr.  His  title  or  claim  to  the  office  cannot  be  tried  in  a  proceeding  to  which  he 
is  not  a  party;  nor  can  his  authority  to  exei'cise  its  functions  be  called  in  question 
in  a  collateral  proceeding.  The  reasons  for  this  rule  are  obvious.  It  rests  upon  con- 
siderations of  public  policy,  and  the  necessity  of  affording  protection  to  those  whose 
rights  and  interests  may  be  affected  by  the  official  acts  of  persons  exercising  the 
authority  and  performing  the  duties  of  a  public  office  under  an  apparent  title  to  its 
possession  and  enjoyment.  It  would  create  great  difficulty  and  embarrassment, 
and  lead  to  irremediable  confusion  and  mischief,  if,  in  every  case  where  an  official 
act  is  essential  to  give  validity  to  the  rights  of  third  persons,  it  could  be  invalidated 
and  set  aside  l)y  proof  of  some  informality  or  defect  in  the  appointment  or  election 
of  the  officer  who  performed  it. "  And  see  Bucknam  v.  Buggies,  15  Mass.  180 ; 
Fntoler  v.  Berbe,  9  Mass.  231 ;  Alvord  v.  Collins,  20  Pick.  418 ;  Sudburg  v.  Heard,  103 
Mass.  .")43.  The  rule  applies  to  cases  of  all  election  officers.  If  they  are  officers  de 
facto  their  acts  are  to  be  regarded  as  valid.  People  v.  Cook,  8  N.  Y.  67 ;  Keller  v. 
Chapman,  34  Cal.  635 ;  People  v.  McManus,  34  Barb.  620 ;  Lippincott  v.  Paria,  92 
HI.  24  ;  People  v.  EiUiard,  29  111.413  ;  Collijis  v.  Huff,  63  Geo.  207  ;  Harden  v.  Col- 
f/tiitt,  lb.  588 ;  Ex  parte  Xorris,  8  S.  Carolina,  108 ;  Lee  v.  State,  49  Ala.  43.  In 
Congress  the  cases  of  Barnes  v.  Adams  in  1870,  2  Bartlett  Congressional  Election 
Cases,  760,  and  Eggleston  v.  ^trader,  lb.  897,  overruling  the  former  precedents  to  the 
contraiy,  recognize  and  establish  this  rule  in  election  controversies.] 


ARNOLD    V,    CIIAIMI'NKY.       HOUSE,     1867.  121 


HOUSE  — COMMITTEE   ON  ELECTIONS,  18  6  7. 

Messrs;  P.dwin  Wkight  of  Boston,  Chairman;  Eben  F.  Stone  of  New- 
biiryport,  George  F.  Homer  of  Brookline,  George  A.  Brown  of  Wor- 
cester, Andrew  C.  Wood  of  Micldleborough,  Henry  S.  Wiieeleu  of 
Soutliborough,  John  A.  D.vly  of  Boston. 


John  F.  Arnold  v.   Jonas  A.  Champney. 

House  Document,  No.  64.     January  31,  1807.     Report  by  Edwin  Wright, 
Chairman,  —  Ebex  F.  Stone  dissenting. 

Mistake  in  Name  of  Candidate.  Votes  written  and  cast  for  "  Jonas  Champney  " 
and  "  .J.  Champney  "  were  counted  for  the  sitting  member,  Jonas  A.  Champney, 
upon  proof  that,  up  to  1862,  he  had  always  called  himself  and  been  called  "  Jonas 
Champney,  "  that  his  name  had  been  so  entered  upon  the  voting  list,  and  that  he  had 
voted  and  been  assessed  in  that  name,  although  his  father,  Jonas  C.  Champney,  was 
eligible  to  election. 

Irregularities  in  Election.  Placing  names  upon  the  voting  list  in  pencil  after  the 
polls  were  opened,  in  many  cases  with  no  other  prbof  of  the  voter's  quabfication  than 
his  presentation  of  a  tax  receipt,  examined  and  passed  upon  by  a  single  selectman; 
receiving  votes  upon  the  mere  showing  of  a  tax  receipt,  and  then  entering  and 
checking  the  name  on  the  voting  list;  allowing  four-fifths  of  the  votes  to  l)e  counted 
and  certified  by  four  citizens  of  the  town,  invited  to  that  service  by  the  selectmen, 
but  not  officers  or  sworn  ;  allowing  a  citizen,  not  an  officer  or  sworn,  to  preside  over, 
and  check  names  upon,  and  add  names  to,  one  of  the  three  voting  lists,  were  irreg- 
ularities reported  for  the  action  of  the  house;  but  as,  even  if  the  vote  of  the  town  in 
which  these  irregularities  occurred  was  thrown  out,  the  sitting  member  would  still 
have  a  plurality,  the  committee  expressed  no  opinion  upon  the  question,  and 
reported  that  the  petitioner  have  leave  to  withdraw. 

John  A.  Andrew  for  j^etitioner. 

George  O.  Shattuck  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  John  F.  Arnold  of  Adams,  that  the  seat  now  occupied  by  Jonas 
A.  Champney  of  said  Adams,  as  a  member  of  the  house  of  repre- 
sentatives from  the  second  Berkshire  representative  district,  may 
be  awarded  to  him,  having  heard  the  parties,  their  witnesses  and 
counsel,  submit  the  following  report :  The  second  Berkshire  rep- 
resentative district  is  composed  of  the  towns  of  Adams,  Cheshire, 
Clarksburg,  Florida  and  Savoy,  and  is  entitled  to  elect  two  repre- 
sentatives. The  election  of  one  of  these  representatives  is  imques- 
tioned,  and  he  occupies  his  seat  in  this  body  without  objection, 


122 


M  ASS ACH  USETTS    ELECTION    CA8ES 1 853 -1 885 . 


The  other  eortilied  represeiiLaLnc-  is  Mr.  Jonas  A.  Chuinpiiey, 
the  present  sitting  member,  whose  right  to  occupy  his  seat  depends 
upon  two  questions,  viz. : 

First.     The  disposition  to  be  made  of  eight  votes,  to  be  hereafter 

specified ;  and 

Second.  The  validity  of  the  whole  election  of  the  said  town  of 
Adams,  at  the  general  election  in  November  last. 

IJespecting  the  first  question,  it  appeared  that  records  were 
made  by  the  town  clerks  of  tlie  several  towns,  of  the  names  of 
persons  voted  for,  for  representatives,  the  number  of  votes  received 
for  each  person,  and  the  title  of  the  office  for  which  he  was  pro- 
posed, and  that  these  were  entered  in  words  at  length  in  such 
records.     Gen.  Stats.,  chap.  7,  sect.  15.* 

It  appeared  also,  that  transcripts  of  these  records  were  made 
out,  sealed  up,  and  delivered  by  the  proper  officers  to  the  clerks  of 
the  respective  towMis,  who  duly  met,  ascertained  the  persons 
elected  representatives  as  shown  by  said  transcripts,  and  that 
records  of  the  complete  returns  of  all  the  votes  in  the  district 
were  made  in  the  books  of  records  of  the  several  towns  of  the 
district.     Gen.  Stats.,  chap.  8,  sects.  10,  11,  12,  lo.| 

By  these  consolidated  records  it  appeared  that  the  votes  cast 
for  representatives  were  as  follows,  viz. :  for 


Shupard  Thayer,     . 
Jonas  A.  Champuey, 
Joliii  F.  Ai'nold, 
I'ctor  Hlaokinton,    . 
l-'iskc  Ariuun, 
A.  r.  liutlcr, 
I).  V.  Bucklin, 
|{i'tuni  M.  Cole, 
N.  1'.  lirtjwn, 
S.  W.  Bates,     . 


8i7 

684 

682 

460 

4 

1 

1 

1 

1 

1 


So  tliat  upon  the  official  records  of  the  district,  no  question 
could  arise  affecting  the  right  of  Mr.  Champney  to  hold  the  seat 
lie  now  occupies  as  a  representative  of  said  district. 

But  it  is  admitted,  that  of  the  684  votes  shown  by  the  records 
to  liave  l)cen  given  for  Jonas  A.  Champney,  six  were  written  votes 
for  ''Jonas  Champney,"  one  was  a  written  vote  for  "J.  Champ- 
ney," and  one  was  a  written  vote  for  "  Jonas  C.  Champuey  ;  "  and 


*  Now  Pub.  Stats.,  chap.  7,  §  26. 
t  Now  ]'ub.  Stats.,  chap.  8,  §§  8-16. 


ARNOLD    V.    CllAJlPNEY.       HOUSE,    ISCl.  123 

that  these  eight  votes  were  all  cast  in  the  said  town  of  Adams, 
where  both  the  sitting  member  and  the  contestant  reside. 

It  n^as  in  proof,  also,  that  one  or  two  votes  were  cast  in  said 
Adams  for  -'J.  F.  Arnold,"  and  that  these  were  counted  for  and 
appear  in  the  682  votes  shown  b}-  the  said  records  as  given  f<n- 
"John  F.  Arnold." 

No  evidence  was  presented  to  your  committee  tending  to  show 
by  what  persons  any  of  these  eight  ballots  were  cast,  or  what  the 
intentions  of  the  persons  casting  them  were. 

But  it  was  in  testimony,  and  not  disputed,  that  the  present  sit- 
ting member,  Jonas  A.  Champney,  before  and  up  to  the  year  1862, 
when  he  entered  the  militar}-  service  of  the  United  States,  had 
always  called  himself,  and  been  called  "Jonas  Champney  ;"  had 
written  and  received  letters  under  that  name  ;  that  his  tax  bills  had 
been  made  out  and  presented  to  him  from  the  selectmen  of  Adams 
in  the  name  of  "Jonas  Champney,"  and  paid  by  him  under  that 
name  ;  that  his  name  had  been  placed  upon  the  voting  lists  of  said 
Adams  as  "Jonas  Champne}^"  and  that  he  had  voted  upon  that 
name  ;  that  Jonas  C.  Champney  was  the  name  of  his  father,  who 
was  never  called  or  known  by  the  name  of  "Jonas  Champney," 
and  that,  beside  the  father,  Jonas  C,  and  the  son,  Jonas  A.,  there 
was  no  person  to  whom  the  names  of  "  Jonas  Champne\'"  or  "J. 
Champney "  could  apply  ;  that  since  his  entry  into  the  army,  the 
sitting  member  had  used  only  his  true  name  of  Jonas  A.  Champney. 
Both  the  father  and  son  were  eligible  to  the  office  of  repre- 
sentative. 

If  under  these  circumstances,  the  seven  votes  given  for  "Jonas 
Champney"  and  "J.  Champney"  should  have  been  counted  or 
should  now  be  counted  for  Jonas  A.  Champney,  then  the  sitting 
member  is  entitled  to  hold  his  seat  against  the  petitioner. 

Upon  this  question,  the  authorities  are  at  variance.  In  the  State 
of  Michigan,  under .  statutes  quite  like  ours,  in  requiring  the  name 
of  the  person  voted  for  to  be  designated  on  the  ballot,  it  has  been 
held  in  actions,  in  the  nature  of  quo  ivarranto,  to  tr^^  the  right  of 
parties  to  hold  the  offices  of  judge  of  probate  and  of  sheriff,  that 
evidence  of  the  intention  of  persons  voting  at  an  election  is  not 
admissible.  Such  intention  must  be  determined  Irom  the  ballot 
alone,  —  that  it  was  not  competent  to  show,  for  instance,  that 
"  H.  I."  was  intended  for  "  Henry  I.,"  or  "  J.  A."  for  "  James  A. ;  " 
that,  under  a  statute  prescribing  that  votes  shall  be  given  by  ballots 
"  containing  the  name  of  the  person,"  &c.,  "  J.  A."  is  not  the  name 
of  James  A.,  and  a  ballot  with  only  the  initials  J.  A.  does  not  con- 
tain the  name  by  written  designation,  by  written  characters,  of 


121  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

.lames  A.,  and  that  no  eridence  is  admissible  to  show  that  such  a 
ballot  was  intended  for  James  A. 

Notwithstanding,  where  the  designation  of  an  individual  on  a 
ballot  is  bv  an  al)breviation  sanctioned  by  common  usage,  and  uni- 
\  ersally  understood,  the  ballot  maj'  be  counted  for  the  person  for 
whom  it  was  intended,  and,  it  seems,  that  intention  proved  :  thus, 
"  ,Tas.  A."  may  be  counted  for  "James  A."  People  \\  Higgins, 
3  Mich.  K.  233  ;  J'eopJe  v.  Tisdale,  1  Doug.  (Mich.)  .59  ;  People 
V.  Saxlon,  22  N.  York,  311. 

On  the  other  hand,  the  course  of  decisions  at  law  in  New  York 
and  in  this  State,  and  the  parliamentary-  practice  of  this  Common- 
wealth, seem  to  have  adopted  the  opposite  rule.  Thus,  in  the  court 
of  appeals  in  New  York,  it  was  held  that  votes  for  H.  F.  Yates 
were  allowable,  and  to  be  counted  for  Henrj'  F.  Yates,  if,  under 
all  the  circumstances,  the  jury  should  believe  they  were  intended 
for  him,  and  that  the  intention  of  the  voter  might  be  proved  by  the 
elector  himself,  or  b}'  circumstances  surrounding  the  election  ;  in 
that  case,  that  the  person  voted  for  had  often  subscribed  his  name, 
'*H.  F.  Yates;"  that  he  had  formerly  held  the  same  office,  and 
was  at  the  time  a  candidate  ;  that  people  would  generally  apply 
the  abbreviation  to  him,  and  that  no  person  was  known  in  the 
county  besides,  to  whom  it  could  apply.  A  name,  the  Court  say, 
is  the  discriminative  appellation  or  designation  of  an  individual. 
The  abbreviations  of  Geo.  and  Hen.  are  not  names,  as  Georg-e  and 
Henry  are,  but  are  signs  used  for  such  names  by  common  consent ; 
that  is  to  say,  the  intent,  by  the  use  of  such  an  abbreviation,  to 
point  out  a  person  bearing  the  full  name,  is  proved  by  the  com- 
mon understanding;  and  that  when  an  abbreviation  less  full  is 
used,  the  intent  (though  it  may  not  be  inquired  into  by  the  board 
of  canvassers  or  selectmen,  who  are  but  ministerial  officers,)  may 
be  tried  l>y  a  court  and  jury,  as  any  other  question  of  fact,  and 
without  any  peculiar  hazards  of  perjury  or  other  evil  results. 
Pi'ople  v.  Ferguson,  8  Cowan,  102. 

If  sucli  inquiries  may  be  entered  into  by  courts  and  juries  who 
are  to  administer  the  strict  letter  of  the  law,  a ./br^jon  they  are 
legitimate  subjects  of  examination  and  decision  by  a  body  which 
l)pssc8ses  the  ultimate  and  final  power  of  determining  the  election 
and  .|ualification  of  its  own  members,  -  and  which,  in  giving  effect 
to  the  expressed  will  of  the  great  body  of  the  voters  hi  any  con 
stituency,  is  not  necessarily  limited  by  the  strict  technical  rules 
that  must  prevail  in  trials  at  law. 

The  same  doctrine  is  enunciated  in  the  case  of  The  People  v. 
Cooke,  4  Selden,  (N.  Y.)  R.  67.     In  Senate  (Mass.)  Document, 


ARNOLD    V.    rilAMPNEY.       HOUSE,    1807.  125 

No.  4,  for  1843  and  Senate  (Mass.)  Document,  No.  3,  for  1840. 
In  the  case  of  Collins  v.  Douglaf^s,  1  Gray,  167,  the  right  to 
determine  who  is  meant  by  a  name,  and  that  Peter  was  used  for 
and  instead  of  Peter  G.,  by  circumstances  collateral  to  the  name 
itself,  was  maintained.  Peter  G.  Douglass  was  a  poor  debtor 
under  bonds  for  the  liberty  of  prison  limits,  and  gave  notice  of  his 
intention  to  take  the  benefit  of  the  provisions  of  law,  for  the  relief 
of  poor  debtors.  His  notice  was  signed  Peter  Douglass,  omitting 
the  initial  G.  of  his  middle  name,  and  objection  was  made  in  an 
action  on  the  bond,  that  his  discharge  was  insufficient,  b}'  reason 
of  the  omission  of  the  initial  letter  of  the  middle  name  of  the 
debtor  ;  and  it  was  urged  that  Peter  and  Peter  G.  were  the  names 
of  two  different  individuals  ;  that  the  notice  did  not  inform  the 
creditor,  that  the  person  applying  for  the  oath  was  his  debtor,  etc. 
But  the  Court  say  :  "  His  name  is  not  the  only  means  it  affords, 
b}'  which  he  may  be  identified  and  known  by  the  creditor.  His 
profession  and  place  of  residence ;  the  court  wherein  the  orig- 
inal suit  was  prosecuted ;  the  precise  amount  of  the  judgment 
against  him,  both  in  reference  to  damages  and  costs  ;  the  date  of 
the  execution,  and  the  prison  to  which  he  was  thereon  caused  by 
the  plaintiff  himself  to  be  committed,  are  all  accurately'  named 
and  described.  These  circumstances  are  so  direct  and  significant, 
that  it  is  impossible  to  doubt  that  the  creditor  knew  who  was 
intended  by  the  debtor  named  in  the  notice.     This  is  sufficient." 

So  of  a  misnomer  in  the  case  of  a  deed,  where  the  facts  show  a 
latent  ambiguity,  evidence  may  be  given  to  prove  that  Hiram 
Gowing  was  used  for  Hiram  G.  Gowing,  and  in  another  case,  it  is 
clearly  implied,  that  where  such  an  ambiguity  existed,  even  the 
name  ''James  Maxwell"  may  be  shown  to  have  been  used  for 
George.  Peabody  v.  Brown,  10  Gray,  45  ;  Crawford  v.  Spencer, 
8  Gush.  418. 

In  this  case,  there  is  existing  the  doubt,  perhaps  a  latent  ambi- 
guity, as  to  the  person  for  whom  the  votes  "  Jonas  Champney  " 
and  "J.  Champney  "  were  given,  as  taken  by  themselves,  equally 
applicable  to  Champney,  father  and  son.  If,  therefore,  they  may 
be  explained  at  all  by  any  parol  evidence,  it  would  seem  that  such 
evidence  might,  in  accordance  with  these  decisions,  be  given  to 
determine  to  which  of  the  two  they  should  be  given,  and  for  which 
counted,  —  and  the  committee  are  of  opinion  that  these  votes, 
under  the  circumstances  stated,  are  to  be  counted  for  Jonas  A. 
Champney. 

Upon  the  second  question,  various  testimony  was  produced, 
tending  to  show  great  irregularities  in  the  manner  of  conducting 


12>)  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

the  election  iu  Adams,  on  the  occasion  when  these  votes  were  cast. 
Your  committee  will  onlj,-^  refer  to  such  of  them  as  in  their  judg- 
ment are  eleark  important,  as  affecting  the  regularity  and  purit}' 
of  elections,  and  such  onl}-  as  were  proved  and  not  disputed. 

It  appeared,  then,  in  the  first  place,  that  the  names  of  nearlj' 
one-third  of  all  the  persons  who  voted  in  the  town  of  Adams  at 
that  election,  were  entered  upon  the  voting  lists  in  pencil,  after 
the  polls  had  been  opened,  and  while  the  voting  was  going  on  ;  in 
verv  man}'  cases,  this  was  done  with  no  other  examination  or 
investigation  as  to  the  right  of  the  person  to  vote,  than  his  pre- 
sentation of  a  tax  receipt,  which  was  taken,  examined  and  passed 
upon  by  one  of  the  selectmen,  without  consultation  with  his  col- 
leagues, and  without  their  personal  knowledge  ;  and  this,  in  a 
commnnit}-  composed  largelj'  of  operatives,  of  uncertain  and  float- 
ing residenc}'.  In  some  cases,  the  vote  was,  in  fact,  deposited  on 
the  mere  showing  of  the  tax  receipt,  which  was  then  passed  over 
])y  the  presiding  officer  to  the  person  in  charge  of  the  check  list, 
and  then,  for  the  first  time,  the  name  of  the  person  who  had  voted 
was  entered  and  checked.  The  presiding  officer  for  this  day  was 
the  chairman  of  the  selectmen,  and  the  petitioner  in  this  case. 

Gen.  Stats.,  chap.  7,  sect  !»,*  provides  that  ''  The  presiding  offi- 
cers, at  meetings  held  for  the  elections  of  town  and  other  officers, 
shall  be  provided  with  a  cojnx)lete  list  of  the  persons  qualified  to 
vote  at  such  election  ;  and  no  jyerson  shall  vote  at  an  election, 
whose  name  has  not  been  previously  placed  on  such  list,  nor  until 
the  pr«isiding  officers  find  and  check  his  name  thereon." 

Second.  It  was  in  evidence  and  admitted,  that  six  boxes  of 
votes  were  counted  during  the  day  —  the  last  of  which  contained 
only  about  twenty  votes ;  that  besides  this  sixth  box,  only  one 
l)Ox  of  votes  was  counted  by  the  selectmen,  or  any  of  them,  during 
the  day,  or  at  any  time  at  all ;  while  all  the  rest,  amounting  to 
four-fifths  nearly,  of  all  the  ballots  cast,  were  wholly  counted  and 
cerlilied  by  four  citizens  of  the  town,  who  were  invited  to  that 
service  by  the  selectmen,  and  who  were  not  sworn  to  that  service, 
nor  in  any  capacity  sworn  officers  of  the  town. 

(Jen.  Stats.,  chap.  7,  sect.  15,t  provides  that  "The  votes  in 
flections  for  national,  state,  county  and  district  officers,  shall  be 
recei,ml,  sorted  and  counted  by  the  selectmen,  and  by  the  ward 
officers,"  etc. 

ridrd.  It  was  proved  and  admitted  that  one,  at  least,  of  the  three 
lists,  containing  the  names  of  legal  voters,  was  presided  over,  and 

•  Now  Pub.  State.,  chap.  7,  {  9.  t  Now  Pub.  Stats.,  chap.  7,  §  26. 


AKNOLT>    '•.    niAMPNEY.       HOUSE,    1867.  127 

the  names  thereon  checked,  and  other  names  added  thereto,  dur- 
ing the  election,  by  a  citizen  of  the  town  not  an  officer,  and  not 
sworn. 

Gen.  Stats.,  chap.  7,  sect,  9,  provides,  "That  no  person  shall 
vote,  until  the  presiding  officers  find  and  check  his  name  thereon." 

It  should  be  added  that  the  selectmen  were  present,  and  in  a 
position  to  take  notice  of  and  oversee  all  the  proceedings  of  the 
election,  and  were  a  great  portion  of  the  da}'  engaged  personal!}' 
in  the  discharge  of  some  official  dut}'. 

These  irregularities,  as  it  is  claimed  they  are,  under  the  pro- 
visions of  the  statutes  cited,  are  said  to  be  sufficient  to  invalidate 
the  whole  election  of  the  town  of  Adams,  on  the  occasion  referred 
to ;  and  it  is  urged  that  it  is  the  dut}-  of  the  committee  and  of  the 
house  of  representatives,  for  the  great  purpose  of  preserving  the 
pui'ity  of  the  ballot-box,  and  of  guarding  against  the  acts  of  irre- 
sponsible persons,  at  such  elections,  to  declare  the  said  election 
entireh'  null  and  void. 

However  irregulai'h'  in  fact  this  election  was  conducted,  your 
committee  have  no  reason  to  believe  that  there  was  anything  but 
the  best  of  faith  in  its  conduct  by  those  having  it  in  charge,  and 
the}'  have  no  reason  to  believe  that  any  person  was  in  fact  injured 
by  what  then  and  there  transpired.  And  they  have  therefore 
thought  it  their  duty  to  report  the  facts  to  the  house,  for  such  con- 
sideration as  might  become  necessary,  without  themselves  formally 
pronouncing  upon  them  any  opinion. 

It  is  conceded  that  if  the  election  in  the  town  of  Adams,  on  the 
day  in  question,  was  for  any  reason  null  and  void,  then  the  sitting 
member  Mr.  Jonas  A.  Champney,  will  be  entitled  to  hold  his 
seat  by  a  plurality  of  from  20  to  25  votes. 

In  view,  however,  of  the  whole  case  as  presented  to  them,  your 
committee  (Mr.  Stone  of  Newburyport  dissenting)  submit  as  their 
conclusion,  that  the  sitting  member  is  entitled  to  hold  his  seat,  and 
that  the  petitioner  have  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.    H.  .J.  1867,  p.  98.] 


128  M  ASS ACTRTSETTS    ELECTION    CASES 1 853 -1 8Sr,. 


SENATE   AND   HOUSE  — 18G8. 

Thomas  Rice,  Jr.,  v.  A.  K.  P.  Welch. 

House  Docuineiit,  No.  11.  Jauuary  15,  1868.  Joint  committee  on  returns 
of  votes  for  councillors.  Hon.  Daniei,  Needham,  Hon.  Marshall  Wil- 
cox anil  Hon.  Charles  C  Dame,  of  the  senate ;  William  G.  Bates  of 
Westtield,  Willlvji  Howland  of  Lynn,  WARRE>f  Williams  of  Wor- 
cester, Levi  A.  ABm>TT  of  Middlcborougli  and  Samuel  T.  Field,  of 
Slielburne,  of  the  house,  — Mr.  Field  not  signing  the  report. 

Legislature  can  go  behind  Returns  to  ascertain  Election  of  Councillor.  Under  the 
ICtL  amendment  to  the  Constitution,  regarding  the  election  of  councillors,  and  pro- 
viding tliat  the  goveraor,  with  five  or  more  councillors,  shall  examine  the  returned 
copies  of  the  records  of  votes  and  issue  his  summons  to  such  persons  as  appear  to 
be  chosen  councillors,  and  that  the  secretary  shall  lay  the  returns  before  the  senate 
and  house  of  representatives  on  the  first  Wednesday  in  January,  to  be  by  them 
examined  and  the  election  declared  and  published,  the  senate  and  house  of  repre- 
sentatives have  a  right  to  go  behind  the  returns  of  votes  for  councillor,  and  to  cor- 
rect any  errors,  especially  if  such  errors  are  the  result  of  fraudulent  conduct. 

Same.  Burden  of  Proof.  This  right  will  be  exercised  only  upon  satisfactory  pre- 
liminary proof  of  such  substantial  facts  or  well  grounded  causes  of  suspicion  as 
would  induce  strong  conviction  that  fraud  or  mistake,  prejudicial  to  the  contestant, 
nii;^bi  ai)pear  upon  such  examination ;  and  in  the  absence  of  such  preliminary  proof, 
the  returns  of  the  city  and  town  officials,  as  sworn  officers,  should  stand  as   correct. 

Same.  '  Recount  of  Votes  for  Council/or  refused.  The  mere  statement  that  the  con- 
testant and  others  have  strong  reasons  for  believing  that  important  en'ors  were 
made  in  the  return  of  votes,  the  correction  of  which  would  change  the  result;  that 
the  contestant  was  elected  and  a  count  of  votes  would  so  show ;  and  the  fact  that  the 
votes  at  the  subsequent  municipal  election  in  Cambridge  had  been  counted  by  the 
same  persons  who  counted  the  votes  for  councillor,  and  in  several  cases  errors  were 
found  in  their  count  of  votes  at  such  municipal  election,  are  insufficient  reasons  for 
II  rct'oimt  of  votes  for  councillor. 

The  Coiumittee  of  the  senate  and  house  of  representatives,  to 
whom  was  referred  the  returns  of  votes  from  the  several  districts 
for  the  choice  of  councillors,  and  to  whom,  also,  was  referred  the 
petition  of  Thomas  Rice,  Jr.,  of  Newton,  praying  that  he  may  be 
declared  to  be  elected,  and  be  qualified,  as  councillor  from  the 
thinl  district,  instead  of  A.  K.  P.  Welch  of  Cambridge,  have  con- 
sidered the  subject  referred,  and  beg  leave  to  submit  their  final 
report :  The  third  councillor  district  consists  of  wards  seven  and 
twelve  of  the  city  of  Boston,  of  the  cities  of  Cambridge  and  Rox- 
liury,  and  of  twenty-four  towns,  in  the  counties  of  Norfolk,  Mid- 
dlesex and  Worcester.  The  returns  appear  to  have  been  duly 
made  by  the  different  recording  officers ;  they  were  examined  by  a 
rommiltee  of  the  council,  and  upon  this  report  it  was  declared  that 
Mr.  Welch  appeared  to  have  been  elected. 


EICE    V.    WELCH.       SENATE    AND   HOUSE,   1868. 


129 


The  report  of  the  council  finds  the  following  state  of  facts,  in 
relation  to  the  votes  for  councillor  in  the  third  district :  — 


The  whole  number  of  ballots  was 

which  were  cast  for  the  following  persons : 
"  A.  K.  P.  Welch  "  of  Cambridge,       .       '.        .        . 
"A.  K.  P.  Welch"  (no  residence  named),. 

"  Thomas  Rice,  Jr.,  of  Newton,"  .  .  .  . 
"  Thomas  Rice,  Jr.,  of  Brookline,"  .  .  .  . 
"  Thomas  Rice,  Jr.,  of  Cambridge,"  .  .  .  . 
•' Thomas  Rice,  Jr.  (no  residence  naroad), 

"  Thomas  Rice  of  Newton," 

"  T.  Rice"  (no  residence  named),       .        .        .        . 

"  Orrin  S.  Knapp  of  Somerville,  councillor  for  sixth 

district," 

"  John  Jones  of  Cambridge,  for  sixth  district," 

"John  Jones"  (no  I'esidence  named), 

"  Charles  Adams,  Jr,  of  North  Brookfield," 

"  J.  W.  Denton  of  Cambridge,"  . 

"  Jonas  Chickering  of  Grafton," 

"  (Jeorge  P.  Carter"  (no  residence  named), 

"Peter  Harvey"  (no  residence  named),    . 

"May," 


9,538 
754 

9,191 

222 

1 

834 

37 

1 


299 

45 

25 

28 

1 

1 

2 

1 

1 


20,981 


10,292 


10,286 


403 


Total, 


20,981 


This  report  of  the  committee  of  the  council  we  find  to  be  properly 
witnessed  by  the  returns.  It  appears  that  A.  K.  P.  Welch  of 
Cambridge  received  a  plurality  of  six  votes  over  any  other  person 
voted  for,  and  accordingly,  if  the  returns  show  the  true  state  of 
the  votes,  he  was  duly  elected  as  councillor  for  the  third  district. 

Thomas  Rice,  Jr.,  one  of  the  persons  voted  for,  having  notified 
the  clerks  of  said  cities  of  Boston,  Cambridge  and  Roxbury  of  his 
intention  to  contest  the  election  of  Mr.  ^Yelch,  and  havino-  re- 
quested  them  to  retain  the  ballots  cast:  for  such  councillors,  pre- 
sented the  petition  which  is  referred  to  this  committee,  representing 
that  he,  and  not  Mr.  Welch,  received  a  plurality  of  six  votes,  re- 
questing an  investigation,  and  a  hearing  for  the  purpose  thereof, 
and  that,  if  it  should  be  found  that  he  was  duly  elected,  he  might 
be  qualified  as  such  councillor. 

Inasmuch  as  the  petition  did  not  allege  in  what  respects  the 
returns  failed  to  indicate  anything  different  from  the  true  facts  as 
to  the  votes  cast,  the  committee  requested  him  to  furnish  them 
with  a  particular  specification  of  the  nature  of  the  evidence,  that 
they  might  be  able  to  judge  of  the  propriety  of  opening  a  door  to 


130  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

the  admission  of  evidence  which  might,  perhaps,  involve  not  only 
l)rotraoted  labor  but  great  delay  and  expense.  Mr.  Rice,  accord- 
inirlv,  at  the  next  meeting  of  the  committee,  laid  before  them  a 
specification,  in  which  he  refers  to  a  letter,  addressed  to  him  by 
John  S.  Marsh  and  twenty-four  others  of  Cambridge,  of  the  date 
of  Dec.  12,  18G7,  in  which  they  say  that  they  "have  strong 
reasons  for  believing  that  errors  were  made  in  the  return  of  votes 
for  councillor  ;  "  and  they  request  him  to  contest  the  seat  of  Mr. 
Welch.  He  also  specified  that  citizens  and  voters  in  other  cities 
in  the  district  had  informed  him  that  they  had  good  reasons  for 
believin<T  that  important  errors  had  been  made,  the  correction  of 
which  would  change  the  result,  if  the  ballots  should  be  examined. 
lie  further  specified  that  the  votes  cast  at  the  municipal  election  in 
Cambridge  had  been  counted  by  the  same  persons  who  counted  the 
votes  for  councillor,  and  that,  in  several  cases,  errors  were  found 
to  have  been  reported  ;  but  he  nowhere  expresses  his  grounds  of 
belief,  or  his  belief,  that  such  errors  exist,  in  the  whole  of  the 
specification,  other  than  an  opinion  arising  from  the  inference,  that 
inasmuch  as  the  officers  of  one  or  more  wards  in  Cambridge  had 
made  errors  in  counting  the  votes  at  the  municipal  election,  there- 
fore thev  miofht  have  done  so  in  counting  the  votes  for  councillor. 

The  committee  promised  to  hear  the  views  of  the  counsel  of 
Messrs.  Rice  and  Welch,  upon  the  subject-matter  of  said  petition  ; 
and  they  subsequently  requested  him  to  specify  more  particularly 
the  facts  relied  on  by  him.  He  therefoi-e  furnished  the  committee 
with  a  second  amended  specification,  in  which  he  set  forth  his  belief 
that  the  returns  in  wards  seven  and  twelve,  in  Boston,  and  from 
the  several  wards  in  the  cities  of  Cambridge  and  Roxbury  are 
erroneous;  that  he,  and  not  Mr.  "Welch,  was  elected,  and  that  a 
count  of  the  votes  preserved  in  said  cities,  together  with  such  other 
evidence  as  might  "be  requisite,"  would  establish  such  a  conclusion. 

The  case  presented  is  one  of  great  difficulty,  as  cases  of  statutory 
or  constitutional  construction  usually  are.  The  sixteenth  article 
of  amendment  of  the  Constitution  of  Massachusetts  provides  for 
the  number  of  councillors,  the  districting  of  the  Commonwealth 
for  the  choice,  the  day  and  manner  of  election,  and  the  mode  of 
filling  the  vacancies  ;  and,  to  guard  against  delay  in  the  organi- 
zation of  the  government,  it  provides  for  the  examination  of  '•  the 
returned  copies  of  the  records  "  of  the  votes  by  the  governor  and 
at  least  five  councillors,  and  a  summons  by  the  governor  of 
those  councillors  who  appear  to  be  elected,  to  appear  for  qualifi- 
cation on  the  first  Wednesday  of  January.  The  article  further  pro- 
vides that  the  Secretary  of  State  "  shall  lay  the  returns  before  the 
senate  and  house  of  representatives,"  on  that  dav,  "  to  be  by  them 


EICE    V.  WELCH.       SENATE    AND   HOUSE,   1868.  131 

examined  ;  "  and,  in  case  of  an  election,  "  the  choice  shall  be  by 
them  declared  and  published." 

The  Act  of  18G3,  chap.  144,  as  it  is  claimed,  relates  to  this  case. 
It  certainly  speaks  of  ^  all  elections,  held  within  the  cities  "  of  the 
Commonwealth,  and  provides  that  all  ballots  shall,  after  their 
count,  be  sealed  up,  and  properly  labelled  and  certified,  and  then 
transmitted  to  the  city  clerk,  to  be  kept  not  less  than  sixty  days. 
If,  within  the  time  of  forwarding  returns,  or  declaring  the  results 
of  an  election,  ten  or  more  citizens  of  any  ward  shall  declare  their 
belief  of  a  mistake  in  a  count,  "  and  shall  specify  wherein  they 
deem  them  in  error,"  the  clerk  shall  keep  the  votes,  notify  the 
mayor  and  aldermen,  who  shall  recount  the  votes  of  the  ward,  and 
cause  any  mistake  which  may  have  been  made  to  be  rectified  b}'' 
the  clerk,  according  to  their  directions ;  and  if  within  sixty  days  a 
candidate  shall  give  notice  of  a  contest  for  the  office,  the  vote  shall 
be  kept  by  the  clerk,  subject  to  the  order  of  the  body  to  which 
such  person  shall  claim  an  election. 

This  being  the  legislation  upon  the  subject,  it  is  contended  by 
Mr.  Rice  that  it  is  our  duty  to  grant  him  the  examination  he 
demands  ;  to  obtain  from  the  city  clerks  the  votes  cast  in  the  cities 
of  Cambridge  and  Roxbury,  and  the  two  wards  in  Boston  ;  and  if, 
upon  a  count,  it  should  appear  that  there  has  been  a  mistake  in 
those  returns,  of  a  number  sufficient  to  exceed  the  plurality  of  Mr. 
"Welch,  to  declare  him  to  be  duly  elected.  On  the  other  hand,  Mr. 
"Welch  protests  against  our  right  to  open  the  count,  or  go  behind 
the  returns.  He  contends  that  the  Constitution  gives  no  such 
power,  and  that  the  statute  contemplates  an  appeal  from  the  count 
of  the  ward  oflncers,  to  the  mayor  and  aldermen,  whose  decision  is 
to  be  final,  as  is  that  of  the  ward  officers,  in  case  no  appeal  is 
taken  ;  and,  inasmuch  as  towns  are  not  required  to  retain  the  votes 
cast,  he  alleges  that  it  would  be  unequal  and  unjust  to  annul  an 
election  on  the  discovery  of  an  error  in  the  vote  of  a  ward  in  a  city, 
when  counterbalancing  errors  might  be  discovered  in  the  returns  of 
towns,  if  their  votes  had  also  been  retained  for  examination. 

Upon  a  full  consideration  of  the  subject,  the  committee  are  of 
the  opinion  that  they  have  the  right  to  go  behind  the  returns,  and 
to  correct  any  errors.  Especially  have  they  this  right  if  these 
errors  are  the  results  of  fraudulent  conduct,  and  they  do  not  believe 
that  the  article  of  amendment  intended  to  provide  that  the  governor 
of  the  Commonwealth  and  at  least  five  of  the  executive  councillors 
should  go  through  the  special  task  of  adding  up  and  comparing  the 
returns  of  the  votes,  and  declaring  what  councillors  ojij^ear  to  be 
elected  ;  and  then,  that  a  committee  of  the  senate  and  house  should 
examine  the  same  returns  only,  and  report  that  those  high  func- 


132  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

tionaries  had  footed  up  the  returns  correctly,  and  that  what  had 
appeared  to  them  to  be  right,  was  right  in  fact.  It  appeared  to  this 
committee  to  be  a  much  more  natural  construction,  that,  for  the 
purpose  of  preventing  delay  in  the  organization  of  the  government, 
as  the  article  itself  expresses  it,  the  governor  and  council  should 
certifv  the  apparent  choice  of  the  candidates,  and  then  that,  in 
case  of  a  contest,  a  trial  and  hearing  should  be  had  of  the  real  facts 
in  controversy,  before  a  disinterested  body, — the  legislative  branches 
of  the  government. 

But  the  committee  are  of  the  opinion  that  the  exercise  of  the 
right  to  go  behind  the  returns  is  allowable  only  upon  satisfactory 
preliminary  proof  of  such  substantial  facts  or  well-founded  causes 
of  suspicion,  as  would  induce  strong  conviction  that  fraud,  or  mis- 
take, prejudicial  to  the  contestant,  might  appear  upon  such  exami- 
nation ;  and  that,  in  the  absence  of  such  preliminary  proof,  or  even 
of  an  allegation  thereof,  the  returns  of  the  city  and  town  officials, 
who  are  sworn  officers,  should  stand  as  conclusive. 

The  adoption  of  a  contrary  theory  would  leave  it  open  to  a 
defeated  candidate  to  demand  of  the  legislature  a  minute  examina- 
tion of  all  the  votes  and  the  circumstances  of  an  election,  involving 
almost  endless  issues,  requiring  days  and  weeks,  and  perhaps,  an 
entire  session,  although  the  contestant  might  not  be  able  to  state  a 
single  fact  indicative  of  mistake,  error  or  fraud. 

In  the  case  before  us  there  has  been  no  averment  or  proffered 
evidence  of  any  distinct,  independent  or  substantial  facts,  convinc- 
ing us  of  the  probability  of  frauds  or  errors  in  the  return  copies, 
prejudicial  to  the  contestant. 

It  will  be  observed  that  the  committee  of  the  council,  in  their 
report  of  the  apparent  result  of  the  election,  allowed  to  the  con- 
testant all  votes  cast  for  Thomas  Rice,  Jr.,  of  Newton,  described 
also  as  of  Brookline  and  of  Cambridge. 

The  correctness  of  this  disposition  of  the  votes  is  extremely 
doubtful,  but  the  committee  have  not  thought  proper  to  come  to  an 
a<lju(lication  upon  the  subject. 

The  committee,  therefore,  respectfully  report  that  it  appears  to 
them  that  A.  K.  P.  Welch  of  Cambridge  is  elected  councillor  from 
the  third  councillor  district,  and  that  Thomas  Rice,  Jr.,  the  con- 
testant, have  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.  H.  J.,  18G8,  pp. 
34,  3;3,  40,  41  ;  S.  J.,  18G8,  pp.  39,  40.] 


WAIT    V,    INGALLS.       iSEXATE,    1868.  133 


SENATE  — 1868. 

Gilbert  Wait  et   al.  v.  Melville  E.  Ingalls. 

Hou.  Saaiuel  W.  Bowerman,  Hou.  Wm.  Gaston,  Hon.  Wm.  Sciiouler, 
Hon.  Clark  Partridge  and  Hon.  Harrisox  Tweed,  Special  Com- 
mittee, 

Senate  Document,  No.  146.     March  31,  1808.     Report  by  Messrs.  Gastox, 
ScHOULER  and  Tweed,  —  Mr.  Bowerman  dissenting. 

Eligibility  of  Senator.  Inhabitancy.  Upon  the  question  whether  a  senator  hatl 
been  an  inhabitant  of  the  Commonwealth  for  the  space  of  five  years  immediately 
preceding  his  election  (Nov.  5,  1867),  it  appeared  that  he  was  born  in  Maine 
and  came  to  Massachusetts  in  September,  1862,  where  lie  entered  the  law  school  in 
Cambridge,  his  name  being  catalogued  as  of  Maine.  At  the  time  he  was  under  age, 
but  had  obtained  his  freedom  from  his  father,  and  bi'ought  all  his  effects  with  him, 
intending  to  live  and  practise  law  in  Massachusetts.  He  was  admitted  to  the  bar 
there,  Nov.  1,  1862,  upon  his  petition,  in  which  lie  stated  he  was  a  citizen  of 
that  Commonwealth.  In  February  or  March,  1864,  he  went  to  Gray,  Me.,  and 
remained  there  until  the  following  October,  teaching  school  and  opening  an  ofBce 
for  the  practice  of  law,  boarding  at  a  hotel,  and  leaving  all  his  personal  effects, 
except  those  needed  for  use,  in  Boston ;  he  was  elected  a  member  of  the  school  com- 
mittee in  Gray,  Me.,  soon  after  his  arrival,  the  claim  being  made  that  citizenship  there 
was  not  a  necessary  qualification  for  that  office.  He  paid  a  tax  there  under  protest 
that  he  was  not  liable.  He  furnished  in  Portland,  not  supposing  it  affected  his 
domicile,  a  substitute  in  the  army,  which  was  credited  to  Gray,  and  for  which  that 
town  voted  $50.  He  voted  in  Gray  in  1864,  under  the  belief  that  he  could  do  so 
while  still  retaining  his  domicile  in  Massachusetts.  He  intended  all  the  time  to 
return  to  Boston  to  practise  law,  was  waiting  for  a  promised  position  in  a  law  office 
.  there,  and  returned  to  Boston  as  soon  as  he  obtained  it.  It  was  held,  under  the  cir- 
cumstances, that  he  had  been  an  inhabitant  of  the  Commonwealth  for  such  space  of 
five  years  and  was  eligible  to  election. 

R.  M.  Morse,  Jr.,  for  petitioners. 
Ben  J.  Dean  for  sitting  member. 

This  case  was  submitted  to  the  committee  upon  the  following 
statements  of  the  parties,  without  further  evidence  : — 

In  behalf  of  Petitioners.  —  Melville  E.  Ingalls  was  born 
at  Harrison,  in  the  State  of  Maine.  Sept.  6,  1841.  His  father 
then  was,  and  since  has  been,  an  inhabitant  of  that  place.  In 
September,  1862,  he  entered  the  law  school  at  Cambridge,  in  this 
State,  as  a  student,  giving  his  residence  to  Professor  Parker,  on 
the  17th  of  that  month,  as  Harrison,  Me.,  and  it  was  so   recorded 


184  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

hy  the  professor.  On  the  22d  of  September,  Mr.  Ingalls  presented 
to  the  college  steward  Professor  Parker's  certificate  that  he  was 
admitted  to^the  law  school  on  giving  the  bond,  or  making  the 
deposit,  as  prescribed  by  the  laws  of  the  college,  and  there  stated 
to  the  steward,  by  whom  it  was  at  that  time  recorded,  that  his 
residence  was  at  Harrison,  Me.,  and  his  room  in  Ramsay's  Block, 
Cambridge.  The  college  catalogue  for  that  term  stated  his  resi- 
dence and  lodging-room  in  the  same  way. 

Nov.  1,  1862,  at  the  term  of  the  supreme  court  held  in  Cam- 
bridge, he  was  admitted  to  practise  in  the  courts  of  tiiis  State. 
I  lis  petition  for  admission,  signed  by  himself,  described  himself  as 
of  Cambridge,  and  represented  that  he  was  an  inhabitant  of  this 
Commonwealth. 

A  separate  catalogue  of  the  law  school  was  published  in  March 
of  the  following  term.  This  was  prepared  by  one  of  the  students, 
the  librarian  of  the  school.  After  the  proof-sheets  were  ready,  one 
of  the  professors  notified  the  students  that  they  had  opportunity  to 
correct  any  mistakes  in  it.  This  catalogue  stated  the  residence  of 
Mr.  Ingalls  to  be  Harrison,  Me.,  and  his  room  to  be  in  Ramsay's 
Block. 

]\Ir.  Ingalls  received  the  degree  of  LL.B.  at  the  law  school  in 
•July,  1863.  The  rules  of  the  college  provide  that  a  degree  shall 
be  granted  only  to  students  who  have  attended  three  terms  of  the 
school ;  but  if  they  have  been  admitted  to  practise  as  an  attorney, 
they  are  entitled  to  it,  after  they  have  attended  two  terms.  Mr. 
Iii«i:alls'  name  was  at  no  time  on  the  voting;  list  in  Cambrido;e,  nor 
was  he  ever  assessed,  nor  did  he  ever  vote  or  pa}'  a  tax  there.  In 
April.  1863,  he  left  his  room  at  Ramsay's  Block,  and  thereafter 
boarded  with  his  brother,  Dr.  Ingalls,  in  South  Boston,  attending 
tlie  law  school,  however,  till  the  end  of  the  term.  After  that  time 
hv  bad  no  regular  occupation,  until,  in  February  or  March,  1864, 
a  few  days  before  the  spring  election,  he  went  to  Gray,  in  the  State 
of  Maine.  There  he  resided  till  the  conclusion  of  the  town  meet- 
ing liereafter  referred  to,  Oct.  15,  1864.  At  the  town  meeting  in 
March  he  was  elected  one  of  the  superintending  school  committee, 
accepted  the  offlce,  and  entered  upon  its  duties.  In  the  spring 
and  autumn  he  taught  the  high  school  in  the  place.  He  opened 
a  law  office,  put  out  his  sign,  and  did  business  as  a  lawyer 
there. 

In  April,  1864,  he  was  taxed  by  the  assessors  of  Gray,  a  poll 
tax  and  a  tax  on  his  personal  property  (income  from  his  profes- 
sion), and  subscqu(>ntly  paid  the  tax.  His  name  was  on  the  check 
list  of  voters  in  the  town,  made  up  and  certified  by  the  selectmen 


WAIT    V.  INGALLS.       SENATE,   1868.  135 

on  the  8th  of  August,  1864,  and  he  voted  at  the  State  election, 
Sept.  12,  1864. 

On  his  own  application  to  the  provost-marshal  in  Portland,  he 
was  enrolled  in  the  militia  of  Gray  for  the  purpose  of  furnishing  a 
substitute  ;  he  furnished  a  substitute  in  July  or  August,  1864,  and 
at  a  town  fneeting  held  Oct.  15,  1864,  the  town  voted  to  pay  him 
fifty  dollars  towards  his  expenses  thereby  incurred.  He  also  was 
enrolled  in  Boston  in  1863.  Until  1865  he  was  not  assessed  in 
Boston,  nor  was  his  name  upon  the  voting  list,  nor  did  he  pay 
taxes  or  vote  there. 

In-  behalf  of  Sittixg  Member. — In  the  case  of  Melville  E. 
Ingalls,  —  without  admitting  the  truth  of  the  facts  certified  in  the 
statement  of  Mr.  Morse,  —  we  consent  that  Mr.  Ingalls'  eligibility 
to  the  office  he  holds,  may  be  tried  on  that  statement  and  the  fol- 
lowing: — Mr.  Ingalls'  father  is  a  farmer  in  the  town  of  Harrison, 
in  Maine,  his  farm  being  a  poor  one,  and  the  land  hard  to  culti- 
vate. He  gave  his  son,  Melville  E.  Ingalls,  his  time,  some  time 
before  his  arrival  at  majority,  and  he  ever  after  depended  on  his 
own  exertions  for  support ;  and  when  the  latter  came  to  Massa- 
chusetts, he  brought  with  him  all  his  worldly  possessions,  consist- 
ing of  his  books,  wearing  apparel,  and  money  he  had  earned  to 
enable  him  to  pursue  his  studios.  He  had  been  preceded  by  his 
two  brothers,  who  were  all  his  family  connections  except  his  father, 
and  when  he  left  home  he  left  for  good,  with  the  intention  of 
making  Massachusetts  his  future  residence  At  Cambridge,  when 
he  first  arrived,  he  doubtless  did  describe  himself  as  from  Harrison, 
Maine,  but  remembers  none  of  the  details  stated  by  the  other  side, 
with  reference  to  the  catalogues,  steward,  etc.,  and  his  attention 
was  not  called  to  the  preparation  of  the  catalogue  of  1863. 

With  reference  to  his  stay  in  the  town  of  Gray,  it  should  appear, 
that  he  was  elected  a  member  of  the  superintending  school  com- 
mittee, on  the  Tuesday  after  his  arrival  in  the  town,  and  that  at 
the  town  meeting,  it  was  urged  by  his  opponents,  that  he  was  not 
a  citizen  and  therefore  ineligible,  and  by  his  friends,  that  it  was 
immaterial  whether  he  was  a  citizen  or  not,  and  that  citizenship 
was  not  a  necessary  qualification.  The  school  he  opened  was  for 
a  term  of  eight  weeks.  It  was  a  private  school,  which  he  adver- 
tised in  order  to  obtain  scholars,  and  called  it  a  high  school, 
because  he  taught  higher  branches  than  were  taught  in  the  town 
schools.  The  advertisement  was  merely  for  the  term  of  eight 
weeks.  After  the  close  of  the  school,  he  came  to  Boston  and 
renewed  the  efforts,  hereafter  mentioned,  to  obtain  a  situation 
where  he  might  enter  upon  the  regular  practice  of  his  profession. 


136  MASSACIII'SETTS   ELECTION   CASES — 1853— 1S85. 

Duriiiii  this  visit,  he  was  promised  a  situation  in  the  office  of 
Messrs.  Woodbury  &  Andros,  as  soon  as  Mr.  Andros,  who  was 
then  ill,  was  able  to  attend  the  making  of  the  necessary  arrange- 
ments, —  the  supplying  of  the  office  with  assistants  being  by  Mr. 
Woodbury,  left  to  the  discretion  of  Mr.  Andros.  Leaving  it  with 
his  brother  to  write  him,  he  returned  to  Gray  and  received  a  letter 
from  his  brother,  that  Mr.  Andros  thought  he  had  better  wait  till 
the  active  commencement  of  business  in  the  fall.  Mr.  Ingalls 
accordingly  went  to  Harrison,  assisted  his  father  at  haying,  and 
returned  to  Gray,  and  advertised  for  scholars  for  a  term  of  ten 
weeks.  About  the  10th  of  October,  1864,  he  received  a  telegram 
from  his  brother,  to  come  to  Boston  at  once.  He  immediately 
closed  up  his  school,  and  arrived  in  Boston  on  the  17th  day  of 
October.  Before  he  went  to  Gray  at  all,  he  had  made  efforts  to 
obtain  a  situation  in  Boston,  and  at  all  times  intended  to  return  to 
Boston,  where  his  brothers  were,  and  only  went  to  Gray  to  earn 
some  money  to  enable  him  to  carry  out  his  designs  for  the  prose- 
cution of  his  profession  in  Boston.  At  Gray,  he  boarded  at  the 
hotel,  and  paid  Si  (one  dollar)  a  month  for  office  rent.  He 
took  with  him  to  Gray,  only  the  things  ho  most  needed,  leaving 
his  other  property  at  his  brother's  house  in  Boston.  He  objected 
to  paying  his  taxes  at  Gray,  and  only  paid  them  the  day  he  left 
the  town.  The  proceedings  of  his  admission  to  the  bar  may  be 
handed  to  the  committee.  He  was  never  admitted  to  the  bar  in 
the  State  of  Maine.  As  to  furnishing  a  substitute,  he  was  enrolled 
in  Boston  in  1863  ;  and  in  1864,  being  in  Portland,  he  was  asked 
in  the  street  by  a  man,  if  he  wanted  him  as  a  substitute.  On  the 
impnhe  of  the  moment,  he  accepted  the  proposition,  and  went 
directly  to  the  office  of  the  provost-marshal  in  Portland,  where  he 
had  the  substitute  accepted  and  himself  enrolled,  for  the  object  of 
completing  the  entries  and  saving  the  expense  of  bringing  the 
substitute  to  Boston,  and  the  danger  of  losing  him  ;  and  received 
a  certificate  of  exemption  from  draft  anywhere,  for  three  years. 
The  prf)vost-marshal  was  from  Gray  ;  and,  as  this  was  the  only 
voluntary  substitute  that  was  accredited  to  Gray,  the  town  voted 
8'>0.  And  said  transaction  had,  in  his  own  mind,  no  reference  to 
tho  question  of  domicile  or  citizenship,  but  to  meet  his  duty  of 
furnishing  a  substitute  for  the  war.  Mr.  Ingalls  voted  at  Gray, 
believing  that  he  had  a  right  to  do  so,  under  the  constitution  of 
Maine,  by  virtue  of  three  months'  residence  there,  though  he  still 
had  a  domicile  in  Massachusetts,  and  believing  that  voting  did 
not  affect  his  place  of  domicile. 

Mr.  Ingalls  was  elected  by  a  majority  of  669  votes. 


WAIT    V.     INGALLS.        SENATE,     18C8.  137 

The  Committee  reported  as  follows  :  — The  committee  to  whom 
was  referred  the  petition  of  Gilbert  Wait  and  others,  inhabitants  and 
voters  in  the  sixth  Suffolk  senatorial  district,  requesting  that  the 
seat  of  Melville  E  Ingalls  may  be  declared  vacant  and  a  new 
election  ordered,  respectfully  submit  the  following  report:  The 
ease  was  presented  to  the  committee,  upon  the  written  statement 
signed  by  the  attorney  of  the  petitioners  and  by  the  attorney  of 
the  respondent,  herewith  submitted  The  committee  were  much 
aided  in  their  deliberation,  by  the  very  lucid  and  able  arguments 
of  the  counsel  of  the  respective  parties. 

The  first  question  that  presented  itself  to  the  committee  was, 
"Did  Mr.  Ingalls  acquire  a  domicile  in,  or  become  a  resident  of 
Massachusetts  prior  to  November  5,  1862?  " 

It  appears  from  the  written  statement  that  Mr.  Ingalls  was  born 
in  Harrison,  in  the  State  of  Maine,  on  Sept.  G,  1841  ;  that  he 
came  to  Massachusetts  in  September,  1862,  and  entered  the  law 
school  at  Cambridge.  The  committee  were  of  the  opinion  that  he 
left  Harrison  with  the  intention  of  abandoning  his  domicile  there  ; 
that  he  went  to  Cambridge  for  the  purpose  of  completing  his  legal 
education,  and  that  he  intended  to  prosecute  his  profession  in 
Massachusetts.  These  facts  left  no  doubt  in  the  minds  of  the 
committee  that  Mr.  Ingalls  did  become  a  resident  of  Massachusetts 
prior  to  Nov.  5,  1862.  This  opinion  was  strengthened  by  the 
fact  that  on  the  first  day  of  November,  1 862,  Mr.  Ingalls  presented 
to  the  supreme  judicial  court  of  this  Commonwealth  a  petition  to 
be  admitted  to  the  bar,  in  which  he  represented  himself  to  be  an 
inhabitant  of  this  Commonwealth  ;  that  on  this  petition  he  was 
admitted  to  practise  as  an  attorney  and  counsellor-at-law  in  all  the 
courts  of  the  Commonwealth,  The  committee,  therefore,  having 
readilv  arrived  at  the  conclusion  that  Mr.  Ingalls  became  an 
inhabitant  of  this  Commonwealth  prior  to  Nov.  5,  1862,  come  to 
the  consideration  of  the  remaining  question,  viz. :  "  Whethei'  the 
domicile  or  residence  thus  acquired  continued  up  to  Nov.  5, 
1867?" 

Mr.  Ingalls  has  actually  resided  in  Massachusetts  since  Septem- 
ber. 1862,  with  the  exception  of  a  period  from  February  or  March, 
1864,  to  Oct.  17,  1864.  The  petitioners  claim  that  Mr.  Ingalls 
lost  his  domicile  or  residence  in  Massachusetts,  in  consequence  of 
certain  acts  done  by  him  during  his  absence  from  this  State.  These 
acts  are  mentioned  in  the  agreed  statement  of  facts,  which  accom- 
panies this  report.  These  acts,  taken  alone  and  unexplained  by 
the  attendant  circumstances,  would  undoubtedly  be  strong  evidence 
to  prove  that  Mr.  Ingalls  did  intend  to  abandon  his  domicile  or 
residence  in  Massachusetts ;  but  the  committee  do  not  regard  any 


138  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

of  them  as  conclnsive  upon  the  question.  They  are  satisfied, 
upon  the  whole  evidence,  that  Mr.  Ingalls  came  to  Massachusetts 
in  September.  1862,  with  the  intention  of  establishing  a  permanent 
residence  here  ;  that  his  absence  was  (and  was  by  him  then  in- 
tended to  be)  temporary  ;  and  that  he  never  lost  his  domicile  or 
residence  in  this  State."  Mr.  Ingalls  declares  that  his  intention  to 
remain  in  Massachusetts  has  been  constant  and  uniform.  Hi§ 
acts,  subsequent  to  his  absence,  have  been  in  entire  conformity  with 
what  he  now  declares  to  have  been  his  intention  preceding  and 
during  his  absence,  and  the  committee  are  satisfied  that  his  decla- 
ration is  true ;  and  believing  that  Mr.  Ingalls  was  an  inhabitant 
of  this  Commonwealth  for  five  3^ears  next  preceding  his  election 
as  senator,  they  recommend  that  the  petitioners  have  leave  to 
withdraw. 

[The  report  of  the  committee  was  accepted  by  a  vote  of  29 
yeas  to  5  nays.     S.  J.,  1868,  p.  237.] 


HOUSE  — COMMITTEE     ON     ELECTIONS,    1868. 

Messrs.  Lintjs  M.  Child  of  Boston,  Chairman;  Heman  B.  Chase  of 
Yurtnouth,  Phu,o  Chapix  of  Granby,  Davi©  Cushing,  2d  of  Hingham, 
Moses  Pool  of  Rockport,  Walter  S.  Sprague  of  Taunton  and  Wind- 
sor N.  White  of  Winchendon. 


Henry  P.  Trask  v.  John   McDuffee. 

House  unprinted  — 1868.    Report  of  Linus  M.  Child,  Chairman. 

[In  lliis  case,  arising  from  the  election  in  the  Ninth  Middlesex 
District,  the  petitioner  introduced  evidence  tending  to  show  that 
tlic  votes  cast  for  representative  were  improperly  counted.  At 
the  request  of  all  parties,  the  votes  were  recounted  by  the  commit- 
tee, and  it  was  found  and  reported  that  the  original  count  by  the 
election  ofHcers  was  substantially  correct,  so  that  the  sitting  mem- 
ber was  entith-d  to  his  seat.  The  report  of  the  committee  was 
accepted.     II.  J.,  1868,  p.  60.] 


SHAW    V.    ABBOTT.       HOUSE,    18G8.  139 


Jacob  B.  Shaw  v,  Levi  A.  Abbott. 

House   Document,   No.    59.     February   12,    1868.     Eeport  by  Lixus  M. 

Child,  Chairman. 

Qualification  of  Voters.  Residence.  Where  a  voter,  who  was  a  school  teacher  in 
Middleboroiigh,  notified  the  school  committee  in  July,  1867,  that  he  should  not 
remain  longer  unless  his  salary  was  raised,  and,  upon  a  refusal  to  raise  it,  had  a 
farewell  gathering  and  took  formal  leave  of  his  pupils  and  went  to  Maine,  where  he 
arranged  to  enter  a  lawyer's  office,  and  in  the  latter  part  of  August,  upon  invitation 
from  the  school  committee,  who  had  been  unable  to  find  a  teacher  to  supply  his 
place,  returned  to  Middleborough,  having  obtained  a  release  from  his  employer, 
and  resumed  his  school  there,  it  was  held  that  by  his  removal  to  Maine  he  changed 
his  residence  and  was  not  entitled  to  vote  at  the  election  of  1867. 

Same.  Where  a  voter,  who  hud  lived  in  Middleborough  with  his  father,  owning 
real  estate  there,  went  to  New  York  in  the  fall  of  1866  to  engage  in  business,  intend- 
ing to  remain  as  long  as  business  was  good,  and  was  called  back  by  the  illness  of  his 
father  in  June,  1867,  it  was  held,  upon  his  statement,  that  he  had  no  intention  of 
changing  his  home,  but  intended  to  return,  that  he  was  a  resident  of  Middleborough, 
and  quahfied  to  vote  at  the  election  of  1867. 

Same.  Where  a  voter,  who  had  been  living  with  his  wife  at  his  father's  house  in 
Middleborough,  went  to  Hudson  in  the  fall  of  1866  to  get  work,  and  stayed  there 
eight  months  with  his  wife,  boarding  for  a  time  and  afterwards  keeping  house,  pay- 
ing his  tax  in  Hudson  for  1867,  but  not  intending,  as  he  said,  to  make  his  home 
there,  but  to  stay  there  while  he  could  get  work,  and  returned  to  Middleborough  in 
June,  1867,  it  was  held  that  he  was  not  qualified  to  vote  in  Middleborough  at  the 
election  of  1867. 

Same.  Pauper.  A  voter,  who,  for  some  three  months  previous  to  Sept.  23, 
1867,  had  been  assisted  by  the  town  to  the  extent  of  $23,  on  account  of  his 
wife's  sickness,  and  had,  eight  years  before,  received  $45,  when  four  of  his  children 
died  in  one  month,  which  latter  sum  he  had  repaid,  and  after  September  23d  had 
not  been  assisted,  and  was  able,  if  well,  to  take  care  of  himself,  was  held  not  a  pau- 
per, and  his  vote  should  be  counted. 

Same.  A  voter  in  Middleborough,  living  with  a  woman  not  his  wife,  who  had 
two  children,  was  able  to  suppoit  himself,  but  the  woman  was  unable  to  support 
herself,  and  the  town  of  Carver,  in  which  they  all  had  a  settlement,  employed  a 
neighbor  to  give  him  and  his  family  .'§1.50  per  week,  which  was  regularly  paid  to 
them,  mostly  in  provisions ;  it  was  held  that  he  was  a  pauper  and  not  qualified  to 
vote. 

Doid)le  voting.  Where  two  votes  for  the  same  candidate  were  found  folded,  and 
so  close  together  that  it  could  hardly  be  discerned  that  there  were  two,  and  they 
were  laid  aside  by  one  of  the  selectmen,  with  the  intention  of  calling  the  attention  of 
the  selectmen  to  them,  and  afterwards,  having  become  mixed  with  other  votes,  were 
both  counted,  it  was  held,  upon  the  evidence,  that  one  vote  should  be  rejected. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Jacob  B.  Shaw  of  Middleborough,  claiming  the  seat  now 
occupied  by  Levi  A.  Abbott,  a  representative  from  the  Plymouth 


ItO  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

district,  would  respectfully  report :  That,  in  consideration  of  the 
numerous  and  delicate  questions  presented  in  the  investigation  of 
this  case,  they  have  concluded  to  present  the  evidence  to  the 
house,  that  they  may 'understand  the  matter. 

It  appeared  in  the  hearing  of  this  case  that,  at  the  regular 
election  in  November,  the  selectmen  of  the  town  of  Middleborough 
declared  that  the  vote  for  representative  from  that  town  was  a  tie 
vote  ;  and  that  a  second  election  was  held,  in  which  Levi  A.  Abbott, 
the  present  occupant  of  the  seat,  was  declared  elected. 

The  petitioner,  Jacob  B.  Shaw,  petitions  for  the  seat  on  the 
ground  that  by  the  first  election  he  was  elected,  and  to  sustain  his 
petition  offered  the  folloAving  evidence.  It  was  shown  to  the  com- 
mittee, that  at  the  first  election,  one  Mitchell  voted  for  Mr.  Abbott, 
and  it  was  claimed  that  he  had  no  right  to  vote,  for  the  following 
reasons.  Said  Mitchell  had  been  a  school  teacher  in  Middleborough, 
and  at  the  close  of  the  term  in  July,  1867,  he  informed  the  com- 
mittee of  the  school  that  he  could  not  longer  remain  as  teacher, 
unless  the}'  raised  his  salar\',  in  a  manner  proposed  by  him.  The 
committee  refused  to  accede  to  the  proposition.  There  was  a 
farewell  gathering  had,  and  the  teacher  took  formal  leave  of  his 
scholars,  and  the  town  of  Middleborough,  and  went  to  Farmingtou, 
Maine,  and  made  an  agreement  with  a  lawyer  there  to  remain  in 
his  ollice  to  study  law,  and  perform  certain  duties.  It  also  ap- 
peared, that  when  he  went  to  Farmington  he  had  no  intention  of 
returning  at  all,  and  had  settled  in  Farmington  for  the  present.  In 
the  latter  part  of  August,  the  committee,  having  tried  in  various 
directions  to  procure  a  teacher  for  the  school,  and  being  unable  to 
do  so,  and  two  individuals  having  offered  to  defray  the  additional 
expense,  the  said  Mitchell,  having  procured  a  release  from  his 
employer,  returned  to  Middleborough  and  taught  the  fall  term  of 
the  school.  The  committee  were  unanimously  of  the  opinion  that 
said  Mitchell  had  no  right  to  vote. 

It  was  also  proved  that  one  Standish  voted  for  Mr.  Abbott,  and 
that  he  had  not  paid  a  tax  assessed  within  two  years. 

The  connnittee  were  unanimous  in  the  opinion  that  his  vote 
should  be  thrown  out. 

It  also  appeared  that  one  Phinney,  who  voted  for  Mr.  Abbott, 
had  lived  at  Middleborough  with  his  father  ;  that  he  owned  real 
estate  in  said  town,  and  in  the  fall  of  1866  he  went  to  New  York 
State  to  .-ngage  in  the  business  of  shoemaking ;  that  he  went  with 
the  intention  of  .staying  as  long  as  business  was  good,  but  was 
recalled  home  by  the  sudden  illness  of  his  father  about  eight 
months  aftxirwards.  arriving   home   in   June,  1867,     He   testified 


SHAW    V.  ABBOTT.       HOUSE,   1868.  141 

that  he  had  no  intention  of  changing  his  home,  but  intended 
to  come  back  to  Middleborough. 

The  committee  were  not  unanimous  on  this  case,  but  the  majority 
thought  he  had  a  right  to  vote. 

The  remonstrants  then  introduced  testimony  and  proved  that 
one  Wood  left  Middleborough  in  the  fall  of  1866,  and  went  to 
Hudson  in  this  State  ;  that  previous  to  his  departure  he  had  lived 
with  his  wife  at  his  father's  house  in  Middleborough  ;  that  he 
went  to  Hudson  to  get  work ;  that  he  stayed  there  about  eight 
months  with  his  wife  ;  the  first  part  of  the  time  he  boarded,  and 
the  last  part  of  the  time  he  kept  house  ;  that  he  had  no  intention 
of  making  Hudson  his  home,  but  only  to  stay  there  while  he  could 
get  work  ;  that  he  came  back  to  Middleborough  in  June,  1867  ; 
that  he  paid  a  tax  for  1867  in  the  town  of  Hudson. 

The  committee  were  divided  on  this  case,  a  majority  thinking  he 
had  no  right  to  vote  in  TVliddleborough.     He  voted  for  Mr.  Shaw. 

It  was  also  shown  that  one  Cobb,  who  lived  in  Middleborough, 
for  some  three  months  previous  to  Sept.  23, 1867,  had  been  assisted 
by  the  town  to  the  extent  of  twenty-three  dollars  on  account  of  the 
severe  sickness  of  his  wife,  who  died  Sept.  23,  1867  ;  that  he  had 
some  eight  years  before,  been  assisted  by  the  town  to  the  extent 
of  about  forty-five  dollars,  when  he  lost  four  children  in  one  month, 
which  amount  he  had  repaid  to  the  town.  It  appeared  that  since 
September  23,  he  had  not  been  assisted,  and  was  able,  if  well,  to 
take  care  of  himself.  It  was  claimed  that  he  was  a  pauper,  and 
his  vote  should  not  be  counted.     He  voted  for  Mr.  Shaw. 

The  committee  were  unanimous  in  the  opinion  that  he  was  not  a 
pauper,  and  his  vote  should  be  counted. 

It  was  also  shown  that  Edward  Dunham  had  lived  in  Middle- 
borough for  eight  years  ;  that  he  lived  with  a  woman,  who  had 
two  children,  and  who  was  not  his  wife  ;  that  Dunham  earned 
sufficient  for  his  support ;  that  the  woman  was  unable  to  take  care 
of  herself ;  that  they  all  had  a  settlement  in  the  town  of  Carver ; 
and  that  said  town  employed  a  neighbor  to  give  to  Edward  Dunham 
and  family  $1..50  per  week,  which  was  regularly  paid  to  them,  in  the 
way  of  provisions  mostly. 

The  committee  were  divided  on  this  case,  but  the  majority 
thought  that  Dunham  was  a  pauper,  and  his  vote  should  be  thrown 
out.     He  voted  for  Shaw. 

It  was  also  proved,  that  after  the  votes  were  put  in  a  box  and 
turned  from  the  box  into  a  basket,  that  when  taken  out  of  the 
basket  two  votes  that  were  folded  together  were  found  bv  one 
selectman,  and  shown  to  the  rest ;   and  that  the  votes  were  close 


142  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

together,  so  that  it  could  hardly  be  discerned  that  there  were  two. 
Tluit  the  two  votes  were  not  creased  together,  but  folded  in  such  a 
manner  that  if  they  were  thrown  by  one  person  it  was  evidently 
at-i-ideutal.  The  matter  was  called  to  the  attention  of  the  select- 
men, and  the  two  votes  were  laid  aside  by  one  of  the  selectmen, 
who  testified  that  he  intended  to  call  the  attention  of  the  board 
to  them,  but  the  votes  having  become  mixed  with  the  others  were 
both  counted.     These  votes  were  for  Shaw. 

The  committee  were  divided  on  this,  a  majority  thinking  one  vote 
should  be  thrown  out. 

Under  these  facts,  the  petitioner  claimed  that  Mitchell  and 
Standish,  who  voted  for  Mr.  Abbott,  ought  not  to  have  voted  ;  that 
Phinnev,  who  went  to  New  York,  and  AVood,  who  went  to  Hudson, 
stood  in  the  same  position,  and  would  offset  each  other.  Also,  that 
Dunham  and  Cobb  were  not  paupers,  and  had  a  right  to  vote  ;  and 
that  as  to  the  double  vote,  the  selectmen  having  examined  it 
and  having  decided  to  count  it,  that  the  committee,  not  having  seen 
the  votes,  should  not  reverse  the  decision  of  the  selectmen,  on  a 
question  of  this  sort,  without  very  strong  evidence. 

And  thus  that  Mr.  Shaw  was  at  the  first  election  elected  by  a 
plurality  of  two. 

The  remonstrants  claimed  that  Mitchell,  having  been  absent  from 
Middleborough  only  eight  weeks,  did  not  lose  his  right  to  vote  ; 
that  Phinney  did  not  lose  his  residence  by  going  to  New  York  ;  but 
that  Wood,  who  took  his  wife  to  Hudson,  did  lose  his  residence. 

Also,  that  Dunham  and  Cobb  were  paupers  and  could  not  vote, 
and  that  one  person  threw  two  votes,  and  one  of  them  should  be 
thrown  out.  And  hence  Mr.  Abbott  was  elected  by  a  plurality  of 
three  votes. 

Under  these  facts  and  claims,  and  in  consideration  of  the  close- 
ness of  the  case,  the  committee  have  concluded  to  submit  the  facts 
of  the  case  to  the  house,  and  have  instructed  the  chairman  to 
report  that  a  majority  of  the  committee  give  the  petitioner  leave 
to  withdraw,  and  that  Mr.  Abbott  has  a  right  to  the  seat  now 
occupied  by  him. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1868, 
p.  134.] 


IN  RE  DRAPER.       HOUSE,   1870.  143 


HOUSE  — COMMITTEE    ON    ELECTIONS,    1870. 

Messrs.  Charles  H.  Merriam  of  Leominster,  Bainbkidge  Hayward  of 
Milford,  John  E.  Fitzgerald  of  Boston,  Francis  Edsox  of  Hadley, 
Noah  Rankix  of  Erving,  William  H.  Wormstead  of  Marblehead, 
and  John  Rhodes  of  Millbury. 

In  re   David   S.   Draper. 

House  Document,  No.  88.     February  1,  1870.     Report  by  C.  H.  Merriam, 

Chairman. 

Ttepreseniafive  not  qualifying.  Seat  vacated.  Where  a  member  elect  of  the 
house  failed  to  qualify,  and,  after  an  order  of  the  house  that  the  committee  ascertain 
whether  he  intended  to  qualify,  and  if  he  did  not,  to  consider  the  expediency  of 
declaring  the  seat  vacant,  an  invitation  was  sent  to  him  by  the  committee  to  state 
his  intention,  to  which  he  made  an  indefinite  answer,  the  house  declared  the  seat 
vacant  and  ordered  a  new  election. 

In  this  case  the  Committee  on  Elections  were  directed  by  the 
order  of  the  house,  dated  .Jan.  20,  1870,  to  ascertain  whether 
David  S.  Draper  of  Great  Barrington,  the  mernber  elect  from  the 
seventh  Berkshire  district,  intended  to  be  qualified  and  to  take  his 
seat  in  the  house,  —  and  if  not,  to  consider  the  expediency  of 
declarinsr  the  seat  vacant  and  of  orderinsf  a  new  election.  The 
committee  under  this  instruction  enclosed  a  copy  of  the  order  of 
the  house  to  Mr.  Draper,  and  notified  him  in  a  letter  dated  Jan. 
20,  1870,  that  they  would  be  ready  to  hear,  at  any  time  on 
or  before  the  27th  day  of  January,  any  communication  he  might 
have  to  make  on  the  subject.  In  reply  to  this  communication  Mr. 
Draper  wrote  to  the  chairman  of  the  committee,  Jan.  24,  1870,  as 
follows  :  — 

Dear  Sir:  —  I  duly  received  your  letter  of  the  20th  inst.,  with  copy 
of  order  therein  enclosed. 

Business  engagements  will  prevent  my  giving  the  required  attention 
on  or  before  the  time  indicated,  but  will  do  so  as  soon  thereafter  as  pos- 
sible.   Yours  respectfully,  David  S.  Draper. 

The  committee  thereupon  reported  :  — 

The  Committee  on  Elections,  to  whom  was  referred  the  order 
of  Jan.  19,  1870,  relating  to  "  the  seat  of  the  member  elect  from 
the  seventh  district  of  the  county  of  Berkshire,"  have  attended 
to  the  matter  and  report  that,  on  the  20th  day  of  January  instant, 


144  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

thev  forwarded  by  .nail  to  David  S.  Draper,  the  member  elect  for 
said  district,  a  copy  of  said  order,  with  a  letter  enclosed  ;  that  on 
the  28th  day  of  said  January,  they  received  a  letter  from  said 
Draper  in  reply,  which  said  last-named  letter  is  herewith  sub- 
mitted ;  that  the  letter  of  said  Draper,  appearing  to  be  entirely 
indefinite  as  to  the  course  which  he  proposes  to  pursue  in  the 
premises,  as  well  as  to  the  time  when  the  house  may  expect  a 
.locision  from  him,  whether  he  will  appear  and  qualify  or  not,  and 
nearly  a  mouth  of  the  session  having  already  passed  with  the  dis- 
trict "unrepresented,  it  would  seem  as  if  justice  to  the  district,  and 
a  proper  regard  to  the  enforcement  of  the  rule  requiring  the  mem- 
bers to  be  liresent,  and  of  the  right  of  the  house  to  have  those 
present  who  have  been  elected  as  members  and  control  the  right 
to  the  seats,  demand  immediate  action  in  the  case.  They  there- 
fore report  the  accompanying  resolution  and  order. 

[The  resolution  declared  the  seat  of  said  Draper  vacant.  H. 
J.,  1870,  p.  83.  The  resolution  was  adopted,  and  a  precept  issued 
for  a  new  election.  76..  p.  93.  Herbert  C.  Joyner  was  elected 
to  fill  the  vacancy,  and  was  qualified  and  took  the  seat.    76.,  212.] 


Hentiy  T.  Holmes   v.    Andrew  L.    Haskell. 

House  Document,  No.  163.     March  10,  1870.     Report  by  C  H.  Merriam, 

Chairman. 

[In  this  case  the  petitioner  claimed  the  seat  as  representative 
from  the  thirteenth  Suffolk  district,  occupied  by  the  sitting  mem- 
bt-r.  The  committee  found  that  one  ballot  cast,  which  had  the  name 
"II.  T.  Holmes"  upon  it,  for  representative,  should  be  counted  for 
the  petitioner,  Henry  T.  Holmes  of  Chelsea.  By  counting  this 
vote  for  him  the  election,  upon  the  returns,  resulted  in  a  tie  vote 
Vjctwocn  the  petitioner  and  sitting  member.  But  other  evidence, 
not  reported,  in  regard  to  the  voting  and  counting,  showed  that 
the  petitioner  did  not  receive  a  plurality  of  votes  at  the  election, 
and  was  not  entitled  to  the  seat.  The  committee  thereupon  re- 
ported that  the  petitioner  have  leave  to  withdraw,  and  the  report 
was  accepted.  H.  J.,  1870,  p.  255.  Daniel  W.  Gooch  appeared 
for  the  sitting  member.] 


PALMER   V.    HOWE.       HOUSE,    1870.  145 


GiLMAN  M.  Palmer  v.  Jonas  E.  Howe. 

House  Document,  No.  185.  March  15,  1870.  Report  by  Messrs.  Mer- 
RiAM,  Hayward,  Edson,  Rankin,  Wormstead  and  Rhodes, —  Mr. 
Fitzgerald  dissenting. 

Practice  m  Election  Controversy.  Petitioner  can  file  Specifications  setting  out  new 
Allegations.  Under  a  general  allegation,  in  a  petition  for  the  seat,  that  the  petitioner 
received  a  ph;rality  of  votes  cast,  he  can  file  specifications  before  the  committee, 
setting  up  fraudulent  conduct  on  the  part  of  the  selectmen  of  certain  towns  in  the  dis- 
trict, and  claiming  that  by  reason  thereof  the  entire  vote  of  those  towns  should  be 
rejected,  so  that  he  would  have  a  plurality  of  all  the  remaining  votes  cast  in  the 
district. 

Evidence.  Voter  need  not  state  for  whom  he  voted.  A  voter  cannot  be  compelled 
to  disclose,  either  directly  or  indirectly,  the  character  of  his  vote,  when  voting  by 
ballot,  and  he  cannot  be  required  to  testify  before  the  committee  for  whom  he  voted, 
nor  to  what  party  he  belonged. 

Same.  This  exemption  from  obligation  to  disclose  the  character  of  his  vote,  or 
for  whom  cast,  is  a  personal  privilege  which  can  be  claimed  only  by  the  voter  him- 
self, and  the  question  can  therefore  be  put  to  the  witness,  and  if  he  sees  fit  to 
answer,  there  is  no  objection  to  the  testimony. 

Same.  Evidence  how  Person  voted.  Upon  the  question  for  whom  a  person  voted, 
evidence  of  persons  seeing  the  ballot  cast,  statements  of  the  voter  to  other  persons  as 
to  how  he  had  voted,  and  evidence  that  the  voter  was  generally  reported  to  belong 
to  a  certain  political  party,  were  admitted  as  competent. 

Charles  G.  Stevens  and  A.  A.  Ranney /or  pe^lYlo?^er. 

John  T.  Dame  and  Edward  Avery /or  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Gilman  M.  Palmer  of  Clinton,  praying  to  be  allowed  a  seat  in 
the  honse  as  member  from  the  seventh  Worcester  district,  and 
that  the  certificate  granted  to  Jonas  E.  Howe  be  declared  invalid, 
having  heard  the  petitioner  and  said  Howe,  and  having  considered 
the  matter,  a  majority  of  the  committee  submit  the  following 
report :  The  claim  of  the  petitioner  in  this  case  in  his  petition  is, 
that  at  the  annual  election  held  Nov.  2,  1869,  Jonas  E.  Howe,  the 
sitting  member  from  the  seventh  district  of  the  count}^  of  Worces- 
ter, had  but  nine  votes  more  for  representative  than  he  did  ;  that 
more  than  ten  of  the  persons  who  voted  for  said  Howe  were  not 
qualified  to  vote  at  said  election  ;  and  that  he,  the  said  Gilman  M. 
Palmer,  received  a  pluralit}'  of  all  the  votes  of  qualified  voters  cast 
at  said  election,  and  was  therefore  elected ;  and  for  this  reason 
asks  that  the  certificate  of  election  given  to  said  Howe  be  declared 


146  MASSACHUSETTS  ELECTION   CASES  —  1853-1885. 

invalid,  and  that  be  may  be  allowed  a  seat  as  a  member  of  the 

house. 

On  motion  made  bj'  counsel  for  the  sitting  member,  the  claimant 
was  ordered  to  file  a  written  specification  of  the  grounds  on  which 
he  claims  the  votes  for  said  Howe  to  be  illegal,  and  he  did  file  a 
set  of  specifications,  in  which  he  claims  that  more  than  ten  persons, 
who  could  not  read  or  write,  voted  for  said  Howe,  and  who  were 
not  within,  and  of,  the  exceptions  contained  in  the  twentieth  article 
of  the  amendments  of  the  Constitution  of  this  Commonwealth  ; 
that  more  than  ten  persons  voted  for  said  Howe  at  said  election 
who  were  not  residents  of  the  towns  in  which  they  so  voted  ;  and 
that  more  than  ten  persons  voted  for  said  Howe  at  said  election 
who  had  not  paid  a  tax  assessed  upon  them  in  this  State  within 
two  years  next  preceding  the  election  named. 

In  the  course  of  the  trial  the  claimant's  counsel  offered  to  show 
that  the  selectmen  of  Northborough  and  Clinton,  two  of  the  towns 
composing  said  district,  had  acted  so  fraudulently  in  making  up 
the  voting  lists  for  said  election,  and  in  the  management  of  the 
elections  themselves,  in  these  two  towns,  that  the  entire  vote  of 
the  two  towns  should  be  thrown  out  and  discarded  ;  and  that  the 
claimant,  having  a  plurality  of  the  votes  cast  in  Berlin,  the  only 
remaining  town,  was  entitled  to  the  seat.  This  evidence  was 
objected  to  because  there  was  no  allegation  of  fraud  in  the  petition. 
"Whereupon  the  counsel  offered  to  file  specifications  setting  up  the 
fraud,  but  the  counsel  for  Howe  objected  to  the  filing  of  the  speci- 
fications. The  committee,  however,  allowed  the  specifications 
to  be  filed,  and  the  evidence  to  be  introduced,  upon  the  ground 
that  there  was  a  general  allegation  that  the  petitioner  received  a 
plurality  of  the  votes  cast,  and  if  the  votes  of  these  two  towns 
were  discarded  he  would  have  a  plurality  of  all  the  remaining 
votes  cast  in  the  district. 

Under  this  last  specification  a  large  amount  of  testimony  was 
introduced  by  both  parties  ;  but  the  committee,  after  a  full  consid- 
eration of  the  matter,  are  unanimously  of  the  opinion  that,  while 
there  were  some  acts  on  the  part  of  the  selectmen  of  these  towns 
which  were  clearly  illegal,  and  others  which  were  irregular,  there 
was  no  such  evidence  of  fraud  as  would  warrant  the  committee  in 
recommending  that  the  vote  in  these  towns  be  thrown  out,  and  the 
seat  given  to  the  claimant  on  the  vote  of  a  single  town,  repre- 
senting but  a  mere  fraction  of  the  district. 

Under  the  first  specification  filed,  the  committee  are  unanimous 
in  finding,  from  the  evidence,  that  two  persons  voted  in  the  town  of 
Northborough,  at  the  election  referred  to,  who  were  not  at  the  time 


PAL3IEK   V.    HOWE.       HOUSE,    1870.  147 

residents  of  that  town  ;  but  they  also  find  that  one  of  these  persons 
voted  for  each  of  the  parties  contesting  the  election,  so  that  the 
result  is  not  affected  thereby.  The  committee  also  find,  unanimously, 
that  one  person  voted  in  Clinton  at  said  election,  who  had  not  paid 
a  tax  assessed  upon  him  in  this  State  within  two  years  next  pre- 
ceding said  election,  as  required  by  law ;  and  that  fifteen  other 
persons,  all  naturalized  Irishmen,  who  could  not  read  or  write,  and 
who  were  not  within  any  of  the  exceptions  in  the  twentieth  article 
of  the  amendments  to  the  Constitution  of  the  Commonwealth,  had 
also  voted  for  representative  in  Clinton,  at  said  election. 

These  sixteen  persons  all  appeared  before  the  committee,  and 
the  counsel  for  the  claimant  proposed  to  ask  them  for  whom  they 
voted  for  representative  at  the  election  named,  and  on  the  first  one 
called,  declining  to  answer  the  question  for  whom  he  voted  for 
representative  in  Clinton  at  the  last  election,  asked  the  committee 
to  require  him  to  answer.  The  committee  declined  to  make  the 
requirement,  on  the  ground  that  the  voting  being  by  ballot,  it  came 
under  the  rule  laid  down  in  section  199  of  Cushing's  Law  and 
Practice  of  Legislative  Assemblies,  and  adopted,  not  only  for  the 
government  of  the  house,  by  its  seventy-second  rule,  but  for  its 
committees  on  elections  as  well.  The  witness  was  then  asked  to 
what  party  he  belonged,  but  he  declined  to  answer ;  and  the  com- 
mittee ruled  that  this  came  under  the  same  rule,  and  that  a  voter 
could  not  be  compelled  to  disclose,  either  directly  or  indirectly,  the 
character  of  his  vote,  when  voting  bj^  ballot.  The  committee  also 
ruled  that  this  exemption  from  being  required  to  disclose  the 
character  of  the  vote,  or  for  whom  thrown,  was  a  personal  privilege 
which  could  only  be  taken  advantage  of  by  the  voter  himself,  and 
that  the  question  might,  therefore,  be  put  to  the  witness,  and  if  he 
saw  fit  to  answer  there  was  no  objection  to  the  testimony.  Two 
of  these  sixteen  persons  answered  the  question,  one  stating  that  he 
voted  for  Howe  and  the  other,  for  Palmer.  The  others  all  declined 
to  answer.  This  left  fourteen  votes  without  any  evidence  for 
whom  they  were  cast.  In  two  cases,  it  was  proved,  by  those  who 
stood  by  at  the  polls  and  saw  the  votes  as  they  were  put  in,  that 
they  were  for  the  sitting  member,  and  in  three  other  cases  it  was 
proved  that  the  persons  named  had  stated  to  the  witnesses  that 
they  voted  for  the  sitting  member.  This  left  nine  votes  without 
an}'  evidence  for  whom  they  were  cast. 

The  claimant  then  called  three  witnesses,  —  one  a  deputj'^-sheriff 
in  Clinton  and  a  resident  on  the  territory  now  embraced  within  that 
town  for  thirty  years,  one  a  trial  justice  in  that  town  and  a  resi- 
dent there  for  twenty  years,  and  the  other  a  well-known  citizen. 


148  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

all  active  members  of  the  republican  party,  and  also  members  of 
the  canvassing  committee  of  that  party  last  fall  and  for  longer  or 
shorter  periods  before,  —  to  testify  as  to  the  party  to  which  those 
persons  belonged.  These  witnesses  stated  that  they  had  obtained 
their  knowledge  of  the  reputation  of  these  persons  chiefl}'  while  per- 
forming their  duties  as  members  of  canvassing  committees  in  dif- 
ferent 3-ears,  but  that  the}^  had  some  knowledge  of  them  outside  of 
these  duties.  Five  of  the  nine  persons  were  naturalized  in  1860, 
and  all  three  of  the  witnesses  testifled  that  they  knew  four  of  them, 
and  that  thej'  were  reputed  to  be  democrats,  and  two  of  the  three 
witnesses  testified  the  same  in  regard  to  the  fifth.  One  of  the  re- 
maining four  was  naturalized  in  1866,  and  two  of  these  witnesses 
testified  the  same  in  regard  to  him  as  the}"  had  done  in  relation 
to  the  other  five,  and  one  of  the  two  said  that  this  person  had 
stated  to  him  that  he  was  a  democrat.  One  of  the  remaining  three 
was  naturalized  in  1867,  and  one  only  of  these  three  witnesses 
testified  that  he  knew  him,  and  that  he  was  reputed  to  be  a  demo- 
crat. The  remaining  two  were  naturalized  Oct.  26,  1869,  and 
all  three  of  these  witnesses  testified  as  to  the  one,  and  two  of  them 
as  to  the  other,  that  they  knew  them,  and  that  they  were  reputed 
to  be  democrats.  No  evidence  was  introduced  to  contradict  or 
control  this  testimony.  The  majority  of  the  committee  signing 
this  report  are  of  the  opinion  that  this  evidence  is  sufficient  to 
establish  the  party  connection  of  these  persons  as  being  democrats. 
There  was  other  evidence  tending,  in  the  opinion  of  the  majority 
of  the  committee  signing  this  report,  to  show  that  it  was  well 
understood  in  Clinton  that  these  persons  were  democrats,  but  they 
do  not  feel  that  it  is  necessary  to  report  it,  unless  the  house  order 
all  the  testimony,  so  far  as  taken  down,  to  be  reported. 

The  fact  being  established  that  these  nine  persons  casting  the 
illegal  votes  belonged  to  the  democratic  party ;  and  it  being 
proved  and  admitted  that  Jonas  E.  Howe,  the  sitting  member,  is  a 
democrat,  and  well  known  in  the  district  as  such  ;  and  that  Oilman 
M.  Palmer,  the  claimant  of  the  seat,  is  a  republican,  and  well 
known  as  such  in  the  district ;  and  that  they  were  opposing  candi- 
dates at  the  election  ;  in  the  absence  of  any  testimony  to  the  con- 
trary, the  majority  of  the  committee  signing  this  report  are  of  the 
opinion  that,  by  parliamentary  law,  as  laid  down  in  said  one  hun- 
dred and  ninety-ninth  section  of  Gushing,  and  explained  by  the 
foot  note  thereto,  it  is  to  be  presumed  that  these  nine  persons 
voted  for  the  sitting  member.  This  presumption  was  not  denied, 
at  the  time,  by  the  counsel  for  the  sitting  member,  provided  party 
lines  were  strictly  drawn,  and  evidence  was  introduced  to  show 


PALMER    V.    HOWE.       HOUSE,    1870.  149 

that  there  were  other  issues  involved  in  this  election,  and  among 
others,  that  of  license  or  prohibition  of  the  sale  of  intoxicating 
liquors  ;  and  it  was  proved  that  a  large  number  of  the  republicans 
voted  for  Mr.  Howe  ;  but  it  was  not  proved,  except  in  one  instance, 
and  this  by  a  man  who  was  not  at  all  clear  as  to  how  he  did  vote, 
that  a  single  democrat  voted  for  Palmer. 

The  majority  of  the  committee  signing  this  report,  upon  this 
e*ndence,  and  the  law  as  they  understand  it,  find  that  sixteen  out 
of  the  eighteen  illegal  votes  found  to  have  been  cast  at  the  election 
referred  to,  were  cast  for  Jonas  E.  Howe,  the  sitting  member,  and 
that  the  other  two  illegal  votes,  so  far  as  the  evidence  shows,  were 
cast  for  Oilman  M.  Palmer,  the  claimant  for  the  seat.* 


*  [Note  by  the  Editors.  Qualified  Voter  need  not  disclose  for  whom  he  voted. 
That  a  qualified  voter  cannot  be  required  to  testify,  directly  or  indirectly,  for  whom 
he  voted,  is  well  settled  by  authority.  Ballot  voting  necessarily  Implies  the  right  of 
secrecy  on  the  part  of  the  voter.  "  This  object  would  be  accomplished  very  imper- 
fectly if  the  privacy,  supposed  to  be  secured,  was  limited  to  the  moment  of  deposit- 
ing the  ballot.  The  spirit  of  the  system  requires  that  the  elector  should  be  secured 
then  and  at  all  times  thereafter  against  reproach  or  animadversion  or  any  other 
prejudice,  on  account  of  having  voted  according  to  his  own  unbiassed  judgment; 
and  that  security  is  made  to  consist  in  shutting  up  within  the  privacy  of  his  own 
mind  all  knowledge  of  the  manner  in  which  he  has  bestowed  his  suffrage.  "  Denio, 
C.  J.,  in  People  v.  Pease,  27  N.  Y.  81.  And  see,  People  v.  Cicotte,  16  Mich.  283; 
Reed  V.  Kneass,  2  Parsons  (Phila.),  366;  Respublica  v.  Raij,  3  Yeates  (Penn.),  66; 
State  V.  Olin,  23  Wis.  309;  State  v.  Hilmantel,  lb.  422;  McCrary  Elections,  ^^  194— 
196. 

Nor  can  others  disclose  without  Voter's  consent.  "  The  courts  have  held  that  a 
voter,  even  in  a  case  of  a  contested  election,  cannot  be  compelled  to  disclose  for  whom 
he  voted ;  and  for  the  same  reason  we  think  others,  who  may  accidentally,  or  by  trick 
or  artifice,  have  acquired  knowledge  on  the  subject,  should  not  be  allowed  to  testify 
to  such  knowledge,  or  to  give  any  information  in  the  courts  upon  the  subject.  Pub- 
lic policy  requires  that  the  veil  of  secrecy  should  be  impenetrable,  unless  the  voter 
himself  voluntarily  determines  to  lift  it;  his  ballot  is  absolutely  privileged,  and  to 
allow  evidence  of  its  contents,  when  he  has  not  waived  the  privilege,  is  to  encourage 
trickery  and  fraud,  and  would,  in  effect,  establish  this  remarkable  anomaly,  that, 
while  the  law  from  motives  of  public  policy  establishes  the  secret  ballot  with  a  view 
to  conceal  the  elector's  action,  it  at  the  same  time  encourages  a  system  of  espionage, 
by  means  of  which  the  veil  of  secrecy  may  be  penetrated  and  the  voter's  action  dis- 
closed to  the  public.  "  Cooleij,  Constitutional  Limitations,  pp.  763,  764.  So,  in  Peo- 
ple v.  Cicotte,  supra,  the  court  held  that  evidence  for  whom  a  legal  voter  had  voted 
was  incompetent,  unless  the  voter  himself  had,  at  the  time  of  voting,  made  the  con- 
tents of  his  ballot  public  by  his  own  consent.  Xo  knowledge  obtained  without  his 
consent  was  admissible,  and  evidence  of  his  statements  concerning  his  vote,  whether 
made  before  or  after  casting  it,  not  accompanied  by  a  voluntary  exhibition  of  its 
contents,  was  equally  inadmissible.  The  statement  by  Mr.  Gushing  (Laiv  and  Prac- 
tice of  Leg.  Assemblies,  55199),  relied  on  by  the  committee,  is  this  :  "  When  the  vot- 
ing is  by  ballot,  a  voter  is  not  compellable  to  disclose  the  character  of  his  vote  or  to 
testify  for  whom  he  voted  on  a  given  occasion.  When  it  becomes  necessary,  there- 
fore, on  the  trial  of  a  controverted  election,  to  show  for  whom  votes  by  ballot  were 
given,  and  such  a  voter  refuses  to  appear,  or  appearing  refuses  to  disclose  for  whom 
he  voted,  evidence  is  admissible,  of  the  general  reputation  of  the  political  character 


150  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

This  will  make  the  vote  for  representative  in  the  district  stand 
as  follows :  — 

Whole  number  of  votes  returned  for  Jonas  E.  Howe,  ...        481 
Deduct  illegal  votes  cast  for  him, J-6 

This  leaves  the  whole  number  of  legal  votes  cast  for  Jonas  E. 
Howe, 


465 


9 


Whole  number  of  votes  returned  for  Gilman  M.  Palmer,  .  .  472 
Deduct  number  of  illegal  cast  for  him, 

Which  leaves  the  whole  number  of  legal  votes  cast  for  Gilman 
M.  Palmer ^''^ 

Deduct  whole  number  of  legal  votes  cast  for  Jonas  E.  Howe,  .  465 
This  leaves  a  plurality  for  Gilman  M.  Palmer  of  ...         .  5 

of  tlie  voter,  and  as  to  the  party  to  wbich  he  belonged  at  the  time  of  the  election." 
If  this  is  meant  to  apply  to  qualified  voters,  the  statement  is  not  supported  by 
authority.  Mr.  Gushing  cites,  as  his  authority,  a  speech  of  Mr.  Jenkins  of  New 
York  in  Congress  in  1840,  upon  the  New  Jersey  controverted  election  (1 6  Cong.  Globe, 
App.  455)  in  which  the  position  was  assumed  that  their  declarations  and  reputation 
as  members  of  a  party,  were  competent,  to  show  how  certain  students,  claimed  to 
have  been  disiiualiiied,  had  voted.  If  these  students  were  qualified  voters,  the  evi- 
dence violated  their  privilege  of  secrecy ;  if  not  qualified,  they  were  not  entitled  to 
the  privilege.  It  may  be  added,  however,  that  very  seldom  is  it  necessary  to  inquire 
for  wliom  gualijied  voters  voted.  The  inquiry  is  important  mainly  where  the  votes 
were  illegal. 

Privilege  ran  be  waived  hy  Voter.  But  this  privilege  of  secrecy  is  purely  personal, 
and  the  voter  can,  at  any  time,  waive  it,  and  testify  for  whom  he  voted,  even  if  the 
party  against  whom  he  testifies  objects.  Reed  v.  Kneass,  and  cases  cited,  stipra. 
Such  evidence  from  the  voter  regarding  the  person  voted  for  is  to  be  distinguished 
from  evidence  of  the  voter's  intention  in  the  case  of  an  imperfect  ballot,  referred  to 
in  the  case  of  Wright  v.  Hooper,  ante.  In  that  class  of  cases  it  is  held  that  the 
voter  cannot  testify  how  he  intended  to  vote  by  a  particular  ballot  cast  by  him,  but 
in  this  catc  the  question  is,  what  ballot  did  he  cast  ?  In  other  words,  the  evidence  is 
offered  to  establish  a  fact,'  not  to  prove  an  intention.     Reed  v.  Kneass,  supra. 

Privilege. does  not  extend  to  Persons  voting  illegally.  The  committee,  in  the  above 
rojMjrt,  were  in  error  in  assuming  that  voters,  found  by  them  to  have  been  unqualified, 
were  entitled  to  the  privilege  of  secrecy  regarding  their  votes.  This  privilege  on  the 
part  of  witnesses  is  strictly  confined  to  those  who  were  legally  entitled  to  vote  at  the 
election  in  question,  and  never  extends  to  those  whose  votes  were  illegal.  The  pro- 
tection continues,  where  the  voter's  right  to  vote  is  disputed,  until  his  want  of  qual- 
iflcMiion  is  proved;  then  the  immunity  ceases,  and  the  contents  of  the  ballot  voted 
can  Tjc  proved  without  his  consent.  People  v.  Cicotte,  16  Mich.  283.  So,  in  State 
v.  mimantel,  23  Wis.  422,  the  court  refused  to  extend  the  privilege  to  a  person 
who,  although  a  qiuilified  voter,  had  not  been  registered  as  required,  so  that  his  vote 
was  illegal.    See  McCrary,  Elections,  ^  297. 

Evidence  to  show  hotv  unqualijied  Voter  voted.  The  person  voting  illegally,  having 
no  privilege  of  secrecy  as  to  his  vote,  cannot  refuse  to  testify  for  whom  he  voted,  on 
the  ground  of  any  privilege  as  a  voter.    But  as  illegal  voting  is  a  criminal  oflFence, 


PALMER   V.    HOWE.       HOUSE,    1870.  151 

The  majority  of  the  committee  signing  this  report,  for  the  reasons 
herein  stated,  report  the  accompanying  resolve  [that  Howe  was 


he  is  not  obliged  by  his  evidence  to  criminate  himself.  The  privilege  of  declining  to 
answer  on  this  ground  is  the  personal  privilege  of  every  witness,  but  if  he  does  not 
claim  it,  the  person  against  whom  he  testifies  cannot  object  upon  this  ground.  State 
v.  Olin,  23  Wis.  310 ;  Commomcealth  v.  Shato,  4  Cush.  591. 

Where  the  unqualified  voter  is  not  examined,  or  refuses  to  answer,  or  fails  to 
remember  for  whom  he  voted,  it  is  competent  to  resort  to  circumstantial  evidence  to 
establish  the  fiict.  MCJrary,  Elections,  ^  293.  The  question  is  unsettled,  whether, 
to  prove  the  fact,  the  declarations  made,  not  under  oath,  by  such  voter,  before  or 
after  voting,  as  to  the  person  for  whom  he  intended  to  vote,  or  had  voted,  are 
admissible.  In  the  above  report,  the  committee  admitted  them.  But  in  the  Dresden 
case,  Massachusetts  Election  Cases,  Gushing,  S.  &  J.,  201,  such  declarations  were 
expressly  excluded.  In  the  controverted  election  case,  in  the42d  Congress,  of  Cessna 
V.  Myers,  Smith's  Cong.  Election  Cases,  60,  Mr.  Geo.  F.  Hoar,  reporting  for  the 
committee,  expressed  grave  doubt  as  to  the  admissibility  of  such  declarations ; 
saying: — "Another  question  of  importance,  which  has  arisen  in  the  discussion  of 
the  cause,  is  the  question  whether  evidence  of  the  declarations  of  alleged  voters, 
made  not  under  oath,  in  the  country,  should  be  I'eceived  to  show  the  fact 
that  they  voted,  or  for  whom,  or  that  they  were  not  legally  entitled  to  vote.  Some 
of  the  committee  think  that  such  evidence  ought  in  no  case  to  be  admitted;  except, 
of  course,  so  far  as  declarations,  made  at  the  time,  of  the  party's  intent  or  under- 
standing as  to  his  then  present  residence,  or  his  purpose  in  a  removal,  is  admissible 
as  part  of  the  res  gestcp.  All  of  the  committee  are  of  opinion  that  such  evidence  is 
to  be  received  with  the  greatest  caution,  to  be  resorted  to  only  when  no  better  is  to 
be  had,  and  only  acted  on  when  the  declarations  are  clearly  proved  and  are  them- 
selves clear  and  satisfactory  "  Mr.  McCrary  shares  this  doubt.  McCrary,  Elections, 
^^  270-273.  Gilliland  v.  Schuyler,  9  Kansas,  569.  Such  declarations  were  excluded 
in  other  cases  before  Congress.  Newland  v.  Graham,  1  Bartlett,  Cong.  Election 
Cases,  5;  New  Jersey  Case,  lb.  19.  But  declarations  of  persons  voting,  concerning 
their  votes,  were  held  admissible  as  evidence  in  Vallandigham  v.  Campbell,  lb. 
223.  To  the  same  effect  see  State  v.  Olin,  23  Wis.  310;  State  v.  Hilmantel, 
lb.  422;  People  v.  Pease,  27  N.  J.  45;  in  which  cases  such  declarations  were 
admitted  on  the  ground  that  such  voters  are  to  be  regarded  in  effect  as  parties  to  the 
proceeding,  so  that  their  declarations  are  admissions. 

The  fact  that  a  person  voted  can  be  shown  by  the  check  on  the  voting  list.  Peo- 
ple V.  Pease,  supra.  The  fact  for  whom  he  voted,  after  proof  of  the  illegality  of  the 
vote,  can  be  proved  by  persons  seeing  the  ballot  deposited,  or  other  evidence  as  to 
his  acts.  Evidence  of  his  party  relations  and  reputation  is  of  more  doubtful  compe- 
tency, though  perhaps  the  douljt  is  applicable  more  to  the  weight  to  be  given  to  the 
evidence,  than  to  its  admissibility.  Judgw  Cooley  says  upon  this  :  "  A  very  loose 
system  prevails  in  the  contests  over  legislative  elections,  and  it  has  been  held  that 
when  a  voter  refuses  to  disclose  for  whom  he  voted,  evidence  is  admissible  of  the 
general  reputation  of  the  political  character  of  the  voter,  and  as  to  the  party  to  which 
he  belonged  at  the  time  of  the  election.  This  is  assuming  that  the  voter  adheres 
strictly  to  party,  and  always  votes  the  '  straight  ticket,'  an  assumption  which  may 
not  be  a  very  violent  one  in  the  majority  of  cases,  but  which  is  scarcely  creditable 
to  the  manly  independence  and  self-reliance  of  any  free  people;  and  however 
strongly  disposed  legislative  bodies  may  be  to  act  upon  it,  we  are  not  prepared  to  see 
any  such  rule  of  evidence  adopted  by  the  courts."  Cooley,  Constitutional  Limita- 
tions, p.  76i,  note.  And  the  action  of  the  house,  in  the  above  case,  in  substituting 
the  minority  report,  if  based  upon  the  reasons  stated  in  it,  that  the  evidence  was 
insufficient  to  show  how  the  persons  in  question  had  voted,  seems  to  affirm  the 
views  of  this  eminent  authority.] 


152  .MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

not  entitled  to  the  seat,  and  that  the  petitioner,  having  a  plurality 
of  the  votes,  was  dul}'  elected  and  entitled  to  the  seat. 

[Mr.  Fitzgerald  submitted  a  minority  report,  finding  that  the 
evidence  failed  to  show  that  the  persons  found  by  the  majority  not 
to  have  been  legal  voters,  and  to  have  voted  for  the  sitting  member, 
had  so  voted,  and  stating  other  reasons  for  confirming  the  sitting 
member  in  his  seat.  Upon  presentation  of  the  report,  it  waa 
amended  by  substituting  the  recommendation  of  the  minority  that 
the  petitioner  have  leave  to  withdraw,  and  the  sitting  member  was 
declared  entitled  to  the  seat.  H.  J.,  1870,  p.  282.  The  action  of  the 
house  was  presumably  based  upon  the  opinion  of  the  minority 
member  that  the  evidence  was  insufficient  to  prove  that  the  votes 
found  to  have  been  illegal,  or  enough  of  them  to  change  the  result 
of  the  election,  were  cast  for  the  sitting  member.  The  case,  with 
the  accompanying  note  referring  to  the  authorities  upon  the  question^ 
is  published  b}'  the  editors  as  of  value  as  a  precedent.] 


LELAND    V.    BIRD.       SENATE,    1871.  153 


SENATE  — 1871. 


James  H.  Leland  v.  Francis  W.  Bird. 

Hon.  Stephen  H.  Rhodes,  Hon.  Adin  Thayer,  Hon.  Orlando  B.  Ten- 
NEY,   Hon.    Richard   Goodman,   and  Hon.    George  F.    Richardson, 

Special  Committee. 

Senate  Document,  No.  13.     January  13,  1871.     Report  by  Mr.  Rhodes, 

Chairman. 

Rejection  of  Return  for  alleged  Error  refused.  The  fact  that  the  vote  foi"  senator  in 
a  town  was  much  less  than  that  for  other  candidates  on  the  same  general  ticket,  and 
fourteen  less  than  the  number  of  names  checked  on  the  voting  list  (it  being  conceded 
that  the  vote  for  governor  and  lieutenant-governor  was  erronously  returned),  will 
not,  in  the  absence,  of  evidence  connecting  the  error  in  the  vote  for  governor  and 
lieutenant-governor  with  the  senatorial  vote,  warrant  the  rejection  of  the  return  for 
senator  in  that  town,  or  the  oi-dering  of  a  new  election. 

The  Special  Committee  to  whom  was  referred  the  petition  of 
James  H.  Leland  of  Walpole,  for  a  seat  in  the  senate  from  the 
third  Norfolk  senatorial  district,  having  heard  all  parties  interested 
who  desired  to  be  heard,  respectfully  snbmit  the  following  report : 
The  petitioner  claims  that,  through  mistake  or  otherwise,  the  votes 
cast  in  the  town  of  Norfolk,  at  the  last  general  election,  were  so 
carelessly  and  erroneousl}'  counted  that  it  is  impossible  to  ascertain 
the  true  connt  thereof;  and  that  for  this  reason  the  returns  of  votes 
of  said  town  ought  to  be  rejected.  As  the  petitioner  had  a  plurality 
of  the  votes  given  in  the  remaining  towns  of  the  district,  he  prays 
to  be  admitted  to  a  seat  in  the  senate. 

It  appeared  in  evidence  before  the  committee,  that  on  the  day 
of  election  the  polls  were  opened  in  the  town  of  Norfolk  about  ten 
o'clock  in  the  forenoon,  and  closed  between  the  hours  of  two  and 
three  o'clock  in  the  afternoon  ;  and  that  the  votes  were  received, 
sorted  and  counted  by  the  selectmen,  and  public  declaration  made 
of  the  result  in  open  town  meeting  as  required  b}^  law. 

By  the  marks  placed  upon  the  check  list  used  on  election  da}', 
opposite  the  names  of  those  who  voted,  it  appeared  that  one  hundred 
and  six  persons  had  cast  their  ballots,  but  the  returns  show  that 
the  whole  number  of  votes  given  for  governor,  was  one  hundred 
and  twenty-one,  and  for  lieutenant-governor,  one  hundred  and 
twenty-three. 


154  MASSACHUSETTS   ELECTION   CASES 1853-1885. 


104 

104 

104 

104 

104 

104 

104 

106 

99 

78 

41 

92 

26 

U 

11 

For  the  candidates  for  other  offices,  the  whole  number  of  ballots 
cast  was  as  follows,  viz.  :  — 

For  Secretary  of  the  Commonwealth, 
Treasurer  and  Receiver-General, 
Auditor  of  Accounts, 
Attorney-General, 
Councillor, 
County  Treasurer, 
Register  of  Deeds, 
County  Commissioner, 
Representative  in  Congress, 
District-Attorney, 

For  Senator,        .... 
Of  which  Francis  W.  Bird  had 

J.F.  Ellis,    . 

James  H.  Leland, 

J.  G.  Ray,    . 

All  the  candidates,  except  those  for  representatives  to  the  Gen- 
eral Court,  were  voted  for  upon  one  ticket,  and  it  was  in  evidence 
that  the  names  of  some  were  scratched. 

The  petitioner  contended,  upon  these  facts,  that  as  the  returns 
show  an  error  in  the  counting  of  the  votes  for  governor  and 
lieutenant-governor  (a  greater  number  having  been  returned  for 
those  officers  than  there  were  names  checked  upon  the  voting  list) , 
and  that  as  the  number  of  ballots  for  district-attorney,  and  for 
senator,  appeared  to  have  been  considerabl}'  less  than  was  cast  for 
the  other  candidates  upon  the  same  general  ticket,  the  selectmen 
must  have  included  in  the  count  of  the  votes  for  the  first  two  officers, 
ballots  which  were  given  for  the  last  two  ;  and  that  it  is  impossible, 
therefore,  now  to  determine  how  many  votes  were  cast  for  senator, 
and  for  whom  they  were  cast. 

If  these  views  of  the  petitioner  are  correct,  inasmuch  as  the 
sitting  member  was  elected  by  a  plurality  of  only  twelve  votes,  it 
would  undoubtedly  be  justifiable  to  recommend  the  rejection  of  the 
returns  from  this  town.  The  committee,  however,  while  satisfied 
that  there  was  an  error  in  the  record  of  the  number  of  votes  given 
for  governor  and  lieutenant-governor,  has  failed  to  discover  any 
link  in  the  testimony  connecting  that  error  with  the  senatorial  vote. 

An  analysis  of  the  returns  shows  that  only  the  candidates  for 
connty  commissioner  received  the  whole  number  of  votes  cast, 
while  those  for  seven  other  offices  had  two  less,  and  the  candidate 
for  representative  in  congress  seven  less  than  that  number. 

It  is  evident,  therefore,  that  only  one  of  the  electors  exercised 


KING   V.    PARK.       SENATE,    1871.  155 

the  right  of  voting  for  candidates  for  all  the  oflSces,  and  that  while 
all  the  rest  appeared  to  appreciate  the  value  of  that  privilege  so 
far  as  relates  to  most  of  them,  many  failed  to  express  at  the  ballot- 
box  their  preferences  for  the  prosecuting  officer  of  the  county,  and 
for  senator. 

Upon  all  the  facts,  the  committee  is  of  opinion  that  there  were 
no  such  informalities,  irregularities  or  mistakes  in  the  counting 
of  the  votes  in  the  town  of  Norfolk,  at  the  last  election,  or  in  the 
returns  thereof,  as  would  warrant  a  recommendation  that  the  prayer 
of  the  petitioner  be  granted,  or  that  a  new  election  should  be 
ordered.  The  committee,  therefore,  recommend  that  the  petitioner 
have  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.     S.  J.,  1871,  p.  30.] 


Dexter  S.  King  v.  W.  D.  Park. 

Hou.  Stephen  H.  Rhodes,  Hou.  Adin  Thayer,  Hon.  Orlando  B.  Ten- 
NEY,    Hon.    Richard   Goodman,   and    Hon.  George  F.   Richardson, 

Special    Committee. 

Senate  Document,  No.  313.  May  19,  1871.  Majority  report  by  Messrs. 
Rhodes  and  Goodman;  minority  report  by  Messrs.  Thayer  and  Rich- 
ardson ;  separate  report  by  Mr.  Tenney. 

Illegal  Ballots.  The  fact  that  illegal  votes  were  deposited  in  a  ward,  but  not 
counted,  and  that  more  votes  were  cast  than  there  were  names  checlved  on  the 
voting  list,  —  the  excess,  if  rejected,  being  insufficient  to  change  the  result,  —  will  not 
warrant  the  rejection  of  the  entire  ward  return,  or  the  avoidance  of  the  election  in 
that  ward. 

Eligibility  of  Senator.  Inhabitancy  in  the  District.  The  question  of  domicile  is  a 
question  of  fact,  and  the  intention  is  evidence  of  the  fact,  but  not  conclusive ;  for, 
to  malie  domicile,  both  fact  and  intent  must  concur. 

Same.  Residence  of  Family.  The  place  where  a  married  man's  family  reside  is 
generally  to  be  deemed  his  domicile;  and  if  his  family  reside  in  one  place,  and  he 
does  business  in  another,  the  presumption  is  that  the  former  place,  as  a  rule,  is  his 
domicile. 

Saine.  Evidence.  Upon  the  question  whether  a  senator  was  at  the  time  of  elec- 
tion in  1870,  an  inhabitant  of  the  district,  it  appeared  that  he  had  formerly  resided 
with  his  family  in  the  district;  that  in  I860  he  moved  his  family  to  his  house  in 
Hull  and  remained  there  eight  months,  when  he  sold  his  house  there  and  removed 
his  family  to  a  house  owned  by  him  in  Roxbury,  where  they  remained  until  1867, 
when  he  purchased  a  house  in  Melrose  and  removed  his  family  there,  where  they 
remained  until  June,  1870,  when  he  bought  a  house  in  Boston,  out  of  the  district, 
into  which  he  moved  his  family,  and  where  they  continued  to  reside,  and  where  he 


156  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

slept  once  or  twice  a  week ;  during  these  years  he  was  proprietor  of  a  hotel  in  the 
district,  in  which  he  had  apartments,  kept  his  clothes  and  usually  slept,  his  wife 
occasionally  staying  there  with  him;  he  paid  three  poll  taxes  in  Melrose  under 
objection  that  he  lived  in  Boston,  did  not  vote  in  Melrose,  and  paid  these  taxes  only 
liecause  it  was  cheaper  than  the  cost  of  getting  rid  of  them;  he  also  paid  personal 
taxes  in  Boston  and  always  voted  there;  he  testified  that  he  resided  and  always 
intended  to  reside  at  his  hotel;  it  was  held  by  a  majority  of  the  committee  (three), 
that  he  was  not  an  inhabitant  of  the  district  at  the  time  of  election,  — but  a  minority 
of  the  committee  (two)  held  that  hp  was  an  inhabitant,  and  the  minority  report  was, 
sustained  by  the  senate. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Dexter  S.  King,  for  a  seat  in  the  senate  now  occupied  by  W.  D. 
Park,  having  heard  the  parties  interested,  and  having  considered 
the  matter,  submit  the  following  report :  The  petitioner  claims  his 
seat  on  the  foUowins:  srrounds  :  — 

First.  That  the  returns  of  the  election  from  ward  5,  —  said  ward 
comprising  a  portion  of  the  senatorial  district  in  question,  —  should 
be  thrown  out,  because  said  election  in  that  ward  was  void  on 
account  of  fraud  and  fraudulent  votes  cast  therein,  and  other  in- 
fractions of  the  laws  regulating  the  manner  of  voting  ;  and 

Seco7id.  That  at  the  time  of  his  election  the  said  Park  was  not 
an  inhabitant  of  the  district  for  which  he  was  chosen. 

It  appears  from  the  returns  that  in  ward  4  Mr.  King  received 
54(1  votes  for  senator,  and  Mr.  Park  426  ;  scattering,  84.  In  ward 
5  :\Ir.  Park  received  782  ;  Mr.  King,  303  ;  R.  F.  Naylor,  38  ;  and 
that  in  ward  5,  159  votes  were  cast  in  excess  of  the  number  of 
names  checked  on  the  check  list. 

In  support  of  the  first  allegation,  testimony  was  presented  show- 
ing conclusively  that  attempts  were  made  to  "  stuff"  the  ballot-box 
in  ward  5  ;  that  such  attempts  were  allowed,  or  not  prevented  by 
the  inspectors  of  elections  ;  that  it  was  only  through  the  vigilance 
of  the  United  States  supervisor  and  the  officers  of  police  that  such 
attempts  were  not  successful ;  that  upon  their  attention  being  specif- 
ically called  to  the  illegal  ballots  in  the  boxes,  they  were  taken  out 
by  the  inspectors,  and  were  put  aside  and  not  counted ;  that  there 
were  many  other  gross  violations  of  law,  and  attempts  to  defraud 
the  voters  in  that  ward  of  their  political  rights,  deserving  of  the 
severest  reprobation ;  and  that  the  inspectors  of  the  election  were 
unfaithful  to  their  oaths  and  to  their  duties. 

lint  inasmuch  as  the  ballots  illegally  deposited  were  not  counted, 
and  the  159  votes  cast  in  excess  of  the  number  of  names  checked 
would  not  affect  the  result  if  thrown  out,  and  the  other  violations 
of  law  are  not  sufficient,  under  the  reported  decisions  in  contested 
election  cases,  to  warrant  your  committee  in  declaring  the  election 
in  ward  5  void,  or  in  rejecting  the  entire  return  of  said  ward,  your 


KING   V.    TARK.       SENATE,    1871.  157 

committee  find  that  on  this  part  of  his  case  the  petitioner  lias  not 
made  out  his  claim  to  the  seat. 

Dismissing  the  subject  of  fraud,  your  committee  proceed  to  con- 
sider the  second  point :  as  to  the  constitutional  qualifications  of  the 
sitting  senator. 

By  the  Constitution  of  the  State,  every  senator  must  be  at  the 
time  of  the  election  an  inhabitant  of  the  district  for  which  he  is 
chosen.  And  ever}'  person  shall  be  coflsidered  an  "  inhabitant"  in 
that  town  or  district  where  he  dwelleth  or  hath  his  home. 

Mr.  Park  lived  with  his  family  in  Central  Court,  in  the  oth  ward 
•of  the  cit}'  of  Boston,  from  1858  until  1865,  when  he  removed  his 
famil}'  to  his  house  in  Hull,  which  they  occupied  about  eight  mouths, 
when  he  sold  that  and  removed  his  family  to  a  house  owned  by  him 
in  Roxbur}',  where  the}'  remained  until  March,  1867,  when  he 
purchased  a  house  in  Melrose  and  removed  his  famil}-  there,  and 
they  remained  there  until  June,  1870,  when  he  purchased  a  house 
in  ward  10,  in  the  city  of  Boston,  and  removed  his  family  into  it, 
-where  they  have  ever  since  continued  to  reside,  and  where  he  sleeps, 
sometimes  once  a  week,  sometimes  two  or  three  times  a  week,  and 
his  wife  occasionally  goes  to  his  hotel  to  stay  with  him.  In  addition 
to  his  real  estate  tax,  Mr.  Park  paid  three  poll  taxes  in  Melrose  ; 
once  in  person,  when  he  stated  to  the  collector  he  ought  not  to  pay 
it,  as  he  lived  in  Boston,  did  not  vote  in  Melrose,  and  said  he  paid 
the  poll  taxes  there  as  it  would  cost  more  mone}'  to  get  rid  of  them 
than  they  amounted  to. 

Mr.  Park  stated  in  his  testimony-  before  the  committee  that  he 
had  always  made  his  residence  at  his  hotel  in  Central  Court,  except 
during  the  year  1868,  when  he  had  a  lodging-room  in  Hay  ward 
Place,  in  ward  5,  Boston,  for  seven  months,  where  he  stayed  nights 
as  his  convenience  required,  and  still  claimed  his  residence  in  said 
ward,  and  that  during  all  the  time  since  August  2,  1858,  to  the 
present,  except  during  the  3'ear  1868,  he  was  the  proprietor  of,  and 
kept  the  hotel  in  Central  Court,  had  his  own  apartments,  consisting 
of  parlor  and  chamber,  there,  and  kept  his  clothes  there  and  com- 
monly slept  there  ;  that  he  alwaj-s  gave  his  name  as  living  at  the 
said  hotel,  voted  in  ward  5,  was  elected  from  said  ward  to  the  com- 
mon council  in  1864  and  '65,  is  taxed  in  said  ward  b}'  the  United 
States  assessors  and  city  authorities. 

Upon  the  evidence  it  also  appears  that  Mr.  Park  purchased  and 
held  a  season  ticket  between  Melrose  and  Boston  for  the  six  months 
commencing  September,  1868,  which  he  sa3's  he  got  for  convenience, 
as  in  going  out  he  often  found  himself  without  ticket  or  mone}'. 
Upon  this  state  of  facts  was  Mr.  Park  at  the  time  of  the  election  an 
•  inhabitant  of  the  third  Sutiblk  district? 


158  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

We  consider  the  word  "  inhabitant,"  mentioned  in  the  original 
Constitution,  and  there  applied  to  the  citizen  voting  and  the  citizen 
voted  for,  as  meaning  the  same  as  "  one  who  has  resided,"  applied 
to  the  voter  alone,  in  the  third  article  of  the  amendments  to  the 
Constitution,  and  both  of  these  expressions,  as  equivalent  to  the 
familiar  term  domicile,  and  therefore  the  right  of  voting  and  of 
being  voted  for  is  confined  to  the  place  where  one  has  his  domicile, 
his  home  or  place  of  abode. 

The  question,  what  place  is  any  person's  domicile,  is  a  question 
of  fact,  and  in  some  cases,  where  the  facts  show  a  more  or  less 
frequent  or  continued  residence  in  two  places,  either  of  which  would 
be  conclusivelv  considered  the  person's  place  of  domicile  but  for 
the  circumstance  attending  the  other,  the  intent  of  the  part}-  to 
consider  the  one  or  the  other  his  domicile  will  determine  it.  But 
the  fact  and  the  intent  must  concur.  The  genei'al  rules  on  the 
subject  of  domicile  are,  that  every  person  must  have  a  legal  domi- 
cile somewhere,  and  can  have  only  one  domicile  for  one  purpose  at 
one  and  the  same  time.  That  the  place  where  a  married  man's 
family  resides  is  generally  to  be  deemed  his  domicile.  That  if  a 
married  man  has  his  family  fixed  in  one  place,  and  be  does  busi- 
ness in  another,  the  former  is  considered  the  place  of  his  domicile. 
(11  Pickering,  415  ;  5  Id.,  311  ;  23  Id.,  170  ;  7  Gray,  300.) 

It  is  a  natural  sequence  to  these  rules  that  a  person  retains  his 
domicile  of  origin  till  he  changes  it  by  acquiring  another;  and  so 
each  successive  domicile  continues  until  changed  by  acquiring 
another.  And  it  is  equally  obvious  that  the  acquisition  of  a  new 
domicile  does  at  the  same  instant  terminate  the  preceding  one. 

The  domicile  of  Mr.  Park,  up  to  the  time  when  he  removed 
his  family  therefrom,  was  in  Central  Court.  There  is  no  evi- 
dence that  when  he  broke  up  his  domestic  establishment  there 
and  removed  his  family  to  Melrose,  he  intended  to  return  there 
with  tliera.  On  the  contrary,  the  presumption  is  strong  that  he 
intended  to  abandon  his  domicile  there,  and  that  when  he  returned 
to  Central  Court,  leaving  his  family  elsewhere,  such  return  was 
merely  for  the  purposes  of  business ;  and  a  residence  negotiorum 
raliono,  for  the  purposes  of  business  and  acquisition  of  property  is 
a  circumstance  of  little  weight,  and  by  no  means  sufficient  to  con- 
stitute a  domicile,  when  counteracted  by  more  controlling  circum- 
stances. In  a  case  depending  upon  minute  and  complicated  cir- 
cumstances, the  mere  declaration  of  a  party,  made  in  good  faith, 
of  his  election  to  make  the  one  place  rather  than  the  other  his  home, 
would  be  sufficient  to  turn  the  scale.  In  nearly  all  the  cases  which 
have  come  under  the  consideration  of  your  committee,  where  such 
intent  has  had  weight,  the  parties  have  been  single,  and  the  ques- 


KIXG    V.    PARK.       SENATE,    1871.  159 

tion  of  a  residence  apart  from  the  family  has  not  been  in  view. 
When  Mr.  Park  removed  his  family  to  Melrose,  all  the  outward 
indicia  of  inhabitancy  pointed  to  that  as  his  place  of  residence  ; 
and  when  he  again  removed  them  to  their  present  home  in  the  10th 
ward,  the  same  indicia  pursued  it,  and  the  declaration  of  intent  is 
not  aided  by  the  facts.  The  factum  and  the  animus  do  not  con- 
cur. In  the  cases  where  a  person  has  two  dwelling-houses  in  dif- 
ferent towns,  in  each  of  which  he  lives  with  his  family  an  equal 
portion  of  the  year  {Harvard  College  v.  Gore,  5  Pick.  310),  and 
where  a  citizen  leaves  the  country  to  be  absent  abroad  for  pur- 
poses of  business  or  pleasure  for  an  indefinite  period,  still  retaining 
his  house  and  furniture  in  the  place  of  his  previous  residence 
{Sears  v.  Boston,  1  Met.  250),  declaration  of  intent  may  have  an 
important  bearing.  The  case  of  Holman,  page  64,  which  comes 
the  nearest  of  any  to  the  one  under  our  consideration,  turned 
expressly  upon  the  point,  that  the  removal  of  his  family'  was  only 
for  a  summer  residence,  and  there  were  no  circumstances  showing 
that  the  domicile  in  Boston  had  ever  been  abandoned,  or  of  any 
intention  of  remaining  out  of  the  city  except  for  the  summer  ;  and 
though  the  removal  of  the  family  from  the  cit}^  before  the  first  of 
May  raised  a  strong  presumption  of  a  change  of  habitanc}',  3'et  the 
presumption  was  properly  allowed  to  be  rebutted  b}^  evidence  of 
the  intention  of  the  party,  and  the  facts  as  proved  concurred  with 
the  intent. 

Impressed  with  these  views  of  the  law  and  the  circumstances  of 
this  case,  your  committee  feel  compelled  to  come  to  the  conclusion 
that  W.  D.  Park  is  not  entitled  to  the  seat  in  the  senate  now  occu- 
pied by  him,  for  the  reason  that  at  the  time  of  his  election  he  was 
not  an  inhabitant  of  the  third  Suffolk  district,  for  which  he  was 
chosen,  but  was  an  inhabitant  and  resided  with  his  famil}"  in  the 
10th  ward  of  said  city. 

Messrs.  Richai'dson  and  Thayer  submitted  the  following  minorit}^ 
report :  — 

"We  concur  with  our  associates  in  so  much  of  their  report,  as 
relates  to  the  frauds  and  fraudulent  voting  in  ward  5,  in  Boston, 
at  the  last  State  election,  but  dissent  from  the  conclusions  to  which 
they  h'ave  arrived  in  regard  to  the  domicile  of  Mr.  Park. 

We  respectfully  submit  some  of  the  reasons  which  have  led  us 
to  a  diflferent  result  from  that  reached  by  a  majority  of  the  com- 
mittee. 

In  considering  the  question  of  residence  in  this  case,  it  is  of  the 
highest  consequence  to  ascertain  what  the  intention  of  Mr.  Park 
was  in  this  respect,  because  in  determining  the  domicile  of  a  party. 


160  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

nil  the  authorities  upon  the  subject  in  this  Commonwealth,  as  well 
as  in  other  States,  concur  in  attaching  great  weight  to  the  intent  of 
the  person  himself.  In  Harvard  College  v.  Gore,  5  Pick.  374, 
Parker,  C.  J.,  says:  "It  seems  manifest  from  all  the  cases  on 
domicile  that  intention  enters  essentially  into  the  subject. "  In 
Fitchburg  V.  Winchendon,  4  Cush.  194,  Fletcher,  J.,  says  :  "The 
intention  is  a  most  essential  element  in  the  case,  and  is  a  most 
*  material  fact.' " 

In  Fiske  v.  The  Inhabitants  of  Chester,  8  Gray,  508,  the  court 
declares :  '*  That  a  man  may  determine  where  his  home  shall  be, 
and  thus  incidentally  determine  where  he  shall  be  taxed. " 

In  Lyman  v.  Fiske,  17  Pick.  234,  Shaw,  C.  J.  says:  "The 
mere  declaration  of  the  party,  made  in  good  faith,  of  his  election  to 
make  one  place  rather  than  another  his  home,  would  be  sufficient 
to  turn  the  scale." 

In  5  Met.  585,  the  judges  lay  this  down  as  a  rule:  "In  some 
cases  where  the  facts  show  a  more  or  less  frequent  or  continued 
residence  in  two  places,  either  of  which  would  be  conclusively  con- 
sidered the  person's  place  of  domicile,  but  for  the  circumstances 
attending  the  other,  the  intent  of  the  party  to  consider  the  one  or 
the  other  his  domicile  will  determine  it.  "  See  also  Lyman  v.  Fiske, 
17  Pick.  231. 

We  believe  that  the  facts  which  appeared  in  evidence  left  no 
doubt  in  the  mind  of  any  member  of  the  committee,  that  the  inten- 
tion of  Mr.  Park  was  to  make  his  domicile  in  ward  5,  from  the  da}' 
when  he  first  went  there  to  reside,  in  1858,  up  to  the  present  time. 
Such  being  the  case,  and  intent  alone  not  being  sufficient  to  settle 
the  [ilace  of  domicile,  it  remains  only  to  consider  whether  the  acts 
and  conduct  of  Mr.  Park  were  consistent  with  such  intent. 

It  is  undisputed  that  Mr.  Park,  for  many  3'ears  prior  and  up  to 
18(35,  had  a  legal  residence  in  ward  5,  in  the  city  of  Boston,  and 
that  legal  residence  now  continues,  unless  it  is  made  to  appear  that 
since  that  time  he  has  gained  ohe  elsewhere. 

In  the  year  18G5  the  family  of  Mr.  Park  resided  for  about  eight 
months  in  Hull,  after  that,  for  about  a  year  in  Roxbury ;  he  then 
moved  his  family  to  Melrose,  where  they  resided  till  June,  1870  ; 
from  there  they  went  to  a  house  in  ward  10,  in  the  city  of  Boston, 
where  the}'  now  live. 

It  is  not  claimed,  we  believe,  that  his  residence  was  ever  estab- 
lished either  in  Hull  or  Roxbury,  but  the  difficulty  seems  to  arise 
out  of  the  fact  that  for  some  considerable  time  his  family  dwelt  in 
Melrose.  It  must  be  admitted,  as  stated  by  our  associates  in  their 
report,  "  that  where  a  married  man's  family  reside  is  generally  to  be 
deemed  his  domicile  ; "  but  this  is  only  the  enunciation  of  a  general 


KING   V.    PARK.       SENATE,    1871.  161 

principle,  applicable  to  those  cases  where  there  is  no  evidence  of 
intent  accompanied  b}'  acts  and  conduct  on  the  pai't  of  the  hus- 
band, to  make  his  domicile  elsewhere,  and  must  not  mislead  us  into 
the  belief  that  the  place  of  residence  of  the  family  is  to  fix  that  of 
a  party  himself.  Chief  Justice  Shaw  declares  in  McDaniel  v.  King, 
5  Cush.  469,  that  "the  wife's  domicile  may  be  governed  by  that 
of  the  husband,  but  the  reverse  is  not  true  ;  "  and  there  are  several 
cases  in  our  own  reports  where  it  appeared  that  the  family  was  in 
one  place  and  the  husband  in  another,  and  yet  it  was  held  that  the 
latter's  residence  was  where  he  himself  lived,  and  not  where  he  had 
left  his  famil}'. 

This  principle  was  settled  in  the  case  of  Fitchburg  v.  Winchen- 
do?i,  4  Cush.  190.  There  one  Lemuel  Sanders,  for  several  j^ears 
prior  to  1831,  lived  in  Oakham  with  his  wife  and  four  children  ;  in 
June  of  that  year  he  went  to  work  in  Winchendon  ;  and  there  was 
evidence  tending  to  show  that  he  went  there  with  the  intention  of 
making  that  his  residence.  His '  family  remained  in  Oakham  till 
the  6th  of  November,  1832,  he  occasionally  visiting  them,  when  he 
moved  them  to  Winchendon.  It  was  held  that  upon  these  facts 
the  jury  were  justified  in  fixing  his  place  of  residence  in  the  latter 
town,  from  the  day  when  he  went  there  to  work.  See  also  Cam- 
bridge V.  Charlestown,  13  Mass.  501  ;  Greene  v.  Greene,  11  Pick.  415. 

Since  the  husband  is  the  head  of  the  family,  and  they  acquire 
their  residence  through  him,  and  not  he  through  them,  and  since  the 
intent  of  Mr.  Park  is  admitted,  it  is  proper  that  we  should  apply 
the  rules  of  law  to  the  facts  in  this  case. 

In  the  first  place,  Mr.  Park  never  intended  to  make  Melrose  his 
home  ;  on  the  contrary',  he  always  claimed  a  residence  in  ward  5. 
When  asked  to  vote  in  Melrose  he  declined  to  do  so,  sa3'ing  he  was 
not  a  citizen  of  that  town,  but  lived  in  Boston.  One  of  the  poll 
taxes  assessed  to  him  in  Melrose  he  paid  under  protest,  and  the 
other  with  the  remark  that  he  paid  it  because  it  would  cost  him  ten 
dollars  to  get  rid  of  paying  two.  For  the  past  ten  years  he  has 
been  taxed  and  paid  a  poll,  personal  propertj^,  and  United  States 
tax  in  ward  5  in  Boston,  and  always  voted  there,  and  has  been  a 
member  of  the  common  council  of  that  cit}-.  During  all  the  time 
when  his  family  was  in  Melrose,  with  the  exception  of  the  time 
when  he  had  rooms  in  Hayward  Place,  in  the  same  ward,  he  kept 
a  hotel  in  Central  Court,  had  a  room  and  parlor  there  for  his  own 
use,  ustially  slept  there,  and  there  kept  all  his  clothing,  and  declared 
that  place  as  his  residence.  In  Januar}',  1868,  he  sold  his  hotel 
business,  and  purchased  it  back  in  January,  1869  ;  during  this  time 
he  occupied  rooms  in  Haj^ward  Place,  substantially  as  he  did,  his 
rooms  at  the  hotel.     After  his  familv  went  to  ward  10,  he  still  con- 


162  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

tinned  in  the  occupancy  of  his  rooms  at  the  hotel.  He  occasionally 
visited  his  family  at  Melrose,  —  sometimes  once  a  week  and  some- 
times oftener,  as  suited  his  convenience.  During  six  months  of 
the  time,  he  had  a  season  ticket  upon  the  railroad  to  Melrose,  but 
it  did  not  appear  that  his  visits  were  more  frequent  than  they  had 
been  before,  or  were  afterwards.  It  is  certain  then,  that  he  him- 
self resided  most  of  the  time  in  ward  5,  and  it  is  equally  certain 
that  he  intended  to  make  his  home  there. 

Our  associates  in  their  report  lay  down  this  principle  of  law, 
that  in  determining  the  place  of  domicile  "  the  fact  and  intent  must 
concur ; "  that  is,  the  fact  of  residence  and  the  intention  to  make 
it  such  must  correspond.  We  are  satisfied  with  that  rule,  and 
are  willing  to  test  the  present  case  by  it.  Mr.  Park's  intent 
was  to  reside  in  ward  5  in  Boston  ;  he  did  reside  there  a  larger 
portion  of  the  time  that  his  family  were  in  Melrose  ;  certainly  the 
intent  and  the  fact  do  not  here  concur,  and  therefore,  Mr.  Park  did 
not  acquire  a  residence  in  that  town.  Since  "  a  person  retains  his 
domicile  of  origin  till  he  changes  it  by  acquiring  another,"  Mr. 
Park  has  "  retained  his  domicile  of  origin"  in  ward  5,  and  has 
never  lost  it.  On  the  other  hand,  applying  this  rule  to  the  facts  as 
we  view  them,  Mr.  Park's  intent  was  to  make  his  residence  in  ward 
5,  for  the  greater  portion  of  the  time  during  which  he  did  reside 
there  ;  the  fact  and  intent  concur  in  fixing  that  as  his  legal  resi- 
dence, and  we  are  of  opinion  that  he  was  a  citizen  of  ward  5,  in 
the  third  Suffolk  senatorial  district,  at  the  time  of  the  election, 
and  is  entitled  to  retain  his  seat.  We  therefore  recommend  that 
tlie  petitioner  have  leave  to  withdraw. 

[Mr.  Tennc}'  concurred  in  the  report  of  the  committee  on  the 
question  of  domicile,  but  was  of  opinion  that  b}"  reason  of  the 
frauds  and  fraudulent  voting,  and  general  neglect  of  duty  and 
irregularities  on  the  part  of  the  inspectors  in  ward  5,  the  returns 
from  that  ward  should  have  been  rejected,  and  Mr.  King  declared 
to  have  been  elected.  Messrs.  Richardson  and  Thayer,  as  appears 
in  their  minority  report,  concurred  with  Messrs.  Rhodes  and  Good- 
man on  the  question  of  fraud  and  fraudulent  voting  in  ward  5, 
but  differed  upon  the  question  of  Mr.  Park's  domicile.  The  senate 
adopted  the  report  of  Messrs.  Richardson  and  Thayer,  that  the 
petitioner  have  leave  to  withdraw,  by  a  vote  of  18  yeas  to  7  nays. 
S.  .J.,  1871,  pp.  40G,  407.  Subsequentl}'  a  motion  to  reconsider 
was  rejected  by  a  vote  of  4  yeas  to  22  nays.  The  editors  publish 
both  reports  as  valuable  upon  the  question  of  the  domicile  of  the 
sitting  senator.] 


ORDWAY    V.    WOODBURY.       HOUSE,    1871.  163 


HOUSE  — COMMITTEE    ON    ELE  C TI ON S,  187  1 . 

Messrs.  Frederick  A.  Boomer  of  Fall  River,  Arthur  G.  Biscoe  of 
Westborough,  James  S.  Allen  of  East  Bridgewater,  Daniel  N.  Barrett 
of  Lyun,  Sylvester  F.  Root  of  Greenwich,  Albert  Leighton  of 
Pepperell  and  H.  D.  Sisson  of  New  Marlborougti. 


John  P.  Ordway  et  al.  v.  Charles  Levi  Woodbury  et  al. 

House  Document,  No.  136.  February  28,  1871.  Report  by  Messrs.  Bar- 
rett, Root,  Leighton  and  Sisson, —  Messrs.  Boomer,  Biscoe  and 
Allen,  dissenting. 

Effect  of  illegal  Votes.  Where  a  vote  is  proved  to  have  been  illegal,  unless  such 
vote  would  affect  the  result  of  the  election,  it  is  unnecessary  to  inquire  for  whom  it 
was  cast. 

Evidence.  Burden  of  proving  illegality  of  Votes  is  ujoori  Contestant.  Where  certain 
names  on  the  voting  list  are  marked  with  a  sign  that  the  persons  whose  names  are 
so  marked  have  not  paid  the  required  tax,  under  instructions  to  the  ward  officers  not 
to  refuse  the  vote  of  any  person  whose  name  is  so  marked,  but  to  challenge  it,  and 
if,  after  such  notice,  the  voter  insists  upon  voting  at  his  peril,  to  receive  the  vote,  the 
burden  of  proof  is  upon  the  person  contesting  the  legality  of  such  vote,  when  so 
received,  to  prove  that  such  voter  has  not  paid  the  required  tax. 

Effect  of  excess  of  Votes  over  number  checked  on  List.  The  mere  fact  that  159  more 
votes  were  returned  than  there  were  names  checked  on  the  voting  list,  if  there  are 
no  circumstances  corroborative  of  any  presumption  of  fraud,  and  the  causes  which 
produced  the  discrepancy  did  not  affect  the  result,  will  not  invalidate  the  election. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  John  P.  Ordwa}'  of  Boston,  and  Edward  F.  Maynard,  also  of 
said  Boston,  praying  to  be  allowed  seats  in  the  house  as  members 
from  the  fifth  Suffolk  district,  or  that  the  election  of  Charles  Levi 
Woodbur}^,  John  J.  Murphy  and  John  W.  Regan  may  be  declared 
void  ;  and  also  the  petition  of  Charles  G.  Nazro  of  Boston,  praying 
that  the  election  of  said  Wood  bur}',  Mui-phy  and  Regan  maj'  be 
declared  null  and  void,  and  that  they  may  be  declared  as  not 
entitled  to  their  seats,  having  heard  the  petitioners  and  said 
Woodbury,  Regan  and  Murphy,  and  having  considered  the 
matter,  a  majority  of  the  committee  submit  the  following  report : 
The  election  of  Charles  Levi  Woodbury,  John  J.  Murphy  and 
John    W.  Regan,  the   sitting   members   of  the  house   from   the 


164  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

fifth  SufTolk  district,  is  controverted  by  the  petitioners  on  the 
following  grounds,  as  set  forth  in  their  petitions  and  in  the  specifi- 
cations submitted  by  them  to  the  committee  :— 

First.  The  election  was  void  because  of  fraud  and  fraudulent 
votes  cast  by  sundry  persons,  and  allowed  by  the  inspectors  and 
ofllcers  of  election. 

Second.  That  some  two  hundred  and  more  votes  were  returned 
as  cast,  above  and  beyond  what  were  actuall}'  cast  and  checked 
upon  the  voting  lists. 

Third.  That  large  amounts  of  ballots  were  fraudulent!}-  put 
into  the  boxes,  and  either  known  to,  or  not  prevented  by  the 
inspectors,  when  they  were  bound  to  see  and  know  of  it,  and  to 
prevent  it,  the  same  being  in  packages  or  bundles  containing  a 
larjre  number  of  distinct  votes  for  the  same  officers. 

Fourth.  That  the  officers  and  inspectors  of  the  election,  after 
ballots  had  been  cast  and  put  in  the  boxes,  took  out  large  numbers 
and  tore  them  up,  not  counting  them. 

Fifth.  That  some  person,  not  J.  W.  White,  and  known  to  the 
inspectors  not  to  be  lie,  voted,  and  was  allowed  to  vote,  upon  the 
name  of  said  White,  when  he  was  not  a  legal  voter,  and  himself 
not  entitled  to  vote. 

Sixth.  That  there  was  ballot-stuffing  and  fraudulent  voting 
generally,  in  various  ways  and  manners,  and  by  various  persons, 
whose  names  are  unknown  to  the  petitioners  ;  that  ballots  were 
put  in  in  packages  and  bundles,  folded  up  and  containing  many 
distinct  votes,  and  not  open  and  separate  as  required  by  law  ;  that 
persons  put  tiieir  hands  deep  into  the  boxes,  and  deposited  votes 
from  tlieir  sleeve  into  the  box  ;  that  persons  came  up  and  voted 
different  times  as  repeaters,  when  their  names  had  once  been 
checked  on  the  voting  list;  that  persons  whom  the  inspectors 
knew  had  not  paid  their  taxes,  were  allowed  to  vote. 

Seventh.  That  the  ballots  were  not  correctly  and  properly 
counted  and  returned  by  the  officers ;  that  all  ballots  cast  were  not 
kept  and  returned  to  the  city  clerk,  according  to  law. 

Eighth.  That  by  a  proper  count  and  return  of  votes  cast,  Dr. 
J.  P.  (Jrdway,  at  least  would  have  appeared  elected,  and  not  John 
W.  Regan. 

Ninth.  Tliat  a  constable  not  authorized  by  law,  was  required 
and  allowed  to  join  in  the  counting  of  ballots. 

Tenth.  That  several  of  the  inspectors  left  their  places  at  the 
voting  lists,  during  the  day,  at  different  times,  leaving  the  voting 
lists  in  charge  of  only  two  or  three  of  their  number. 


i 


ORDWAY   V.    WOODBURY.       HOUSE,    1871.  165 

In  support  of  the  first,  third  and  sixth  allegatioas,  the  peti- 
tioners introduced  evidence  tending  to  show  that  a  number  of  votes 
were  cast  in  packages  or  bundles  ;  that  persons  were  allowed  to  vote 
whose  names  had  already  been  checked  ;  and  that  persons  whose 
names  bore  the  tax  collectors'  cipher,  indicating  that  their  taxes 
were  unpaid,  were  allowed  to  vote.  Under  these  allegations,  the 
committee  find,  from  the  evidence,  that  two  persons  were  detected 
in  the  act  of  casting,  each,  a  package  of  votes.  One  of  these  per- 
sons was  seen  by  Daniel  H.  Shirly  to  empty  a  package  from  his 
sleeve,  under  the  cover  of  an  open  ballot.  The  other  package  was 
cast  b}'  a  person  who  voted  upon  the  name  of  John  W.  White,  and 
was  seen  to  vote  by  three  police  officers,  all  of  whom  heard  the 
package  drop  into  the  box,  and  one  of  whom,  standing  behind  the 
voter,  saw  a  package  in  his  hand.  Henry  Fall,  the  inspector  at 
whose  box  this  affair  occurred,  testified  that  the  voter  cast  an  open 
ballot,  and  that  he  heard  something  drop  as  the  vote  was  deposited. 
Immediately  Sergeant  Gould,  one  of  the  police  officers  whose  atten- 
tion was  attracted 'by  the  falling  of  the  package,  informed  United 
States  Supervisor  Spaulding  of  the  fact,  and  that  officer,  after  con- 
sultation with  the  inspector,  withdrew  the  package  from  the  box 
and  retained  it  in  his  possession. 

The  committee  find,  from  the  testimony  of  John  W.  White 
upon  whose  name  these  votes  were  cast,  that  said  White,  although 
he  had  paid  a  tax  for  the  year  1870,  was  not  entitled  to  vote,  he 
being  an  alien.  So  that  whether  AVhite  himself,  or  a  person  person- 
ating White,  deposited  the  package  referred  to,  both  the  package 
and  the  open  ballot  accompanying  it  were  clearly  illegal;  and,  as 
the  package  only  was  removed  from  the  box,  it  would  appear  that 
a  fraudulent  vote  was  received  and  counted.  But  as  such  vote 
would  not  affect  the  result  of  the  election,  the  committee  will  not 
consider  the  probabilities  as  lor  whom  it  was  cast. 

The  committee  find,  also,  that  five  or  six  persons,  whose  names 
had  been  previously  checked,  were  allowed  to  vote,  upon  taking 
an  oath,  administered  by  the  warden,  to  the  effect  that  the}'  had 
not  previously  voted  during  the  daj-.  There  are  no  means  of 
ascertaining  whether  the  names  of  these  persons  had  been  checked 
through  mistake,  or  had  been  voted  upon  by  parties  personating 
the  legal  voters  whom  such  names  represented  ;  but  the  committee 
incline  to  the  opinion,  in  the  absence  of  a  shadow  of  proof  to  the 
contrary,  that  the  most  reasonable  and  probable  solution  of  the 
matter  is,  that  the  checks  set  against  these  names  were  intended, 
by  the  officer  who  made  them,  for  other  names,  upon  which  the 
proper  person  had  voted. 


166  MASSACHUSETTS   ELECTION    CASES  —  1853-1885. 

The  committee  further  find  that,  in  a  very  few  instances,  per- 
sons were  allowed  to  vote,  whose  names  on  the  check  lists  bore 
the  tax  collectors'  cipher,  as  an  indication  that  their  taxes  were 
unpaid. 

As  a  guide  to  the  ward  officers  as  to  the  course  to  be  pursued 
when  persons  whose  names  bear  this  cipher  appl}'  to  vote,  the 
following  printed  instructions  are  sent  them,  viz.:  "If  a  voter's 
name  upon  the  list  be  checked  (with  two  dots) ,  as  a  sign  that  he 
has  not  paid  his  taxes,  his  vote  cannot  be  refused  by  the  inspec- 
tor haviiig  charge  of  said  list.  Upon  his  offer  to  vote,  the  inspec- 
tor will  CHALLENGE  his  votc  ;  and  if,  after  such  notice,  he  still 
persist  in  offering  his  vote,  it  must  be  received,  but  the  peril  of 
being  judged  an  illegal  voter  falls  upon  the  party  interested." 
From  these  instructions  it  would  appear  that  the  authorities  who 
apply  this  cipher  are  themselves  so  much  in  doubt  as  to  whether 
the  persons  against  whose  name  it  appears  have  or  have  not  paid 
a  tax  within  the  prescribed  time,  that  they  deem  it  their  duty  to 
instruct  the  election  officers  that  they  cannot  refuse  the  votes  of 
such  persons  upon  the  assumption  that  they  have  not  paid  their 
tax. 

Therefore,  as  the  names  of  these  persons  appear  on  the  list  of 
legal  voters,  and  as  these  instructions  show  that  the  official  who 
affixes  this  cipher  says,  subsequently,  that  this  cipher  is  not  to  be 
considered  as  proof  that  the  person  against  whose  name  it  appears 
has  not,  previous  to  offering  his  vote,  paid  his  tax,  the  committee 
are  of  opinion  that  the  burden  of  proof  lies  upon  the  petitioners  to 
show  that  such  voters  had  not,  in  fact,  paid  a  tax  assessed  upon 
them  within  two  years  next  preceding  the  election. 

In  support  of  the  second  allegation,  the  petitioners  produced  the 
check  lists  used  at  the  election,  and  also  the  votes  cast  on  that 
occasion.  And  it  appeared  from  the  testimony  of  S.  F.  McCleary, 
the  city  clerk  of  Boston,  that  at  the  last  State  election  the  polls 
were  opened  in  that  city,  for  the  reception  of  votes  for  the  "  State 
ticket,"  at  8  o'clock  a.  m.,  and  that  they  were  closed  at  ^  o'clock 
!••  M. ;  and  that  the  polls  for  the  reception  of  votes  on  the  "  Park 
Act,"  were  opened  at  9  o'clock  a.  m.,  and  closed  at  6  o'clock, 
p.  M.  Also,  that  the  inspectors  were  instructed  that  the  check- 
mark to  be  employed  to  distinguish  those  who  voted  the  "State 
ticket"  sliould  be  a  dash,  and  that  the  check-mark  used  to  distin- 
guish those  who  voted  on  the  "Park  Act"  should  be  a  circle. 
They  were  further  instructed  that  persons  who  voted  between  8  and 
9  o'clock  (the  time  between  the  opening  of  the  polls  for  the  "  State 
ticket"  and  those  for  the  "  Park  Act"),  should  be  allowed  to  vote 


ORDWAY   V.    WOODBURY.       HOUSE,    1871.  167 

again  during  the  day  for  the  "  Park  Act."  From  the  testimon}^  of 
the  inspectors,  the  committee  find  that  three  of  those  officers,  acting, 
it  is  supposed,  under  a  misapprehension  of  the  instructions  direct- 
ing the  method  of  checking,  reversed  the  order  in  which  the  clieck- 
marks  were  to  be  applied,  thus  rendering  it  impossible  to  determine 
the  exact  number  of  checks  used  to  distinguish  those  who  voted  the 
"  State  ticket ;  "  but,  for  reasons  given  in  the  following  paragraph, 
they  are  of  opinion  that  the  number  of  names  checked  to  designate 
those  who  voted  that  ticket,  must  approximate  verj^  closely  to  the 
whole  number  of  names  checked  on  the  lists. 

All  votes  cast  between  8  and  9  o'clock,  were  given  in  for  the 
"  State  ticket,"  and  during  that  time  three  of  the  inspectors  checked 
with  a  circle  and  two  with  a  dash.  Between  9  and  41  o'clock,  a 
circle  with  a  dash  running  through  it  was  the  check  used  by  all  the 
inspectors.  Between  4^^  and  6  o'clock  but  few  votes  were  received 
and  none  but  such  as  were  given  in  on  the  "  Park  Act ;  "  and  as 
some  of  these  votes  certainly,  and  perhaps  all  of  them,  were  cast 
by  persons  who  had  voted  the  "State  ticket"  previous  to  the 
opening  of  the  polls  for  the  reception  of  votes  on  the  Park  Act,  it 
is  obvious  that  but  very  few,  if  an}',  names  were  checked  after  44- 
o'clock,  that  had  not  previously  received  one  of  the  checks 
employed  on  that  day. 

After  weighing  all  the  testimony  bearing  upon  the  manner  of 
checking,  and  carefully  examining  the  check  lists,  and  counting  the 
votes  returned,  the  committee  are  of  opinion  that  the  number  of 
votes  cast  in  excess  of  the  number  of  names  checked  cannot  be 
far  from  one  hundred  and  fiftj'-nine.  The  ward  officers,  with  one 
exception,  present  no  theory  by  which  to  account  for  this  large 
discrepancy.  One  of  the  inspectors  testified  that  in  his  opinion 
the  lists  were  tampered  with  at  the  clerk's  office  at  the  city  hall. 
But  while  it  appears  that  there  was  undoubtedly  ample  opportunity^ 
for  the  erasure  of  checks  from  these  lists  previous  to  the  city  clerk's 
being  notified  by  the  petitioners  of  their  intention  to  controvert 
the  election  of  the  sitting  members  from  ward  5,  there  is  no 
evidence  tending  to  show  that  a  single  check  was  erased. 

Members  of  the  committee  have  heretofore  had  considerable 
experience  in  ascertaining  the  correctness  and  reliability  of  check 
lists,  and  since  the  hearing  closed  have  pursued  the  investigation, 
only  to  be  confirmed  in  the  opinion  long  entertained,  that,  however 
desirable  or  necessar\'  it  ma}'  be  that  the  check  lists  used  at  an 
election  should  constitute  an  accurate  and  complete  record  of  the 
number  of  votes  cast  at  such  election,  and  the  names  of  persons  by 
whom  cast,  it   is  a  fact  well   known   to   all  who  have  had    much 


168  MASSACHUSETTS.  ELECTION   CASES 1853-1885. 

experience  in  comparing  the  number  of  names  checked  with  the. 
number  of  votes  returned  at  elections  presided  over  b}-  ward 
oflicers,  that  such  hsts  are  wholly  unreliable  and  untrustworth}-,  as  a 
means  of  ascertaining  the  number  of  legal  votes  cast,  and  that  the 
discrepancy  between  checks  and  returns  will  vary,  to  conform  to 
the  degree  of  intelligence  possessed  b}'  the  election  officers  and 
their  adaptability  to  the  duties  assigned  them. 

From  the  return  of  votes  given  in  for  governor  at  the  last  state 
election,  we  find  that  something  rising  52  per  cent,  of  the  legal 
voters  of  Boston  participated  in  that  election.  And  we  find  the 
percentage  of  the  voters  of  the  several  wards,  who  participated  in 
that  election,  to  range  as  follows,  viz.  :— ward  4,  40  per  cent.  ;  ward 
8,  44  ;  ward  1,  45  ;  ward  3,  48  ;  ward  12,  48  ;  ward  16,  50 ;  wards 
C,  7  and  9,  52  each  ;  wards  10  and  11,  53  each  ;  ward  14,  58  ;  ward 
5,  59  ;  wards  13  and  16,  62  each  ;  ward  2,  67.  There  is  nothing 
in  this  showing  that  would  give  rise  to  a  suspicion  that  the  percen- 
tage of  ward  5  is  swollen  by  fraudulent  votes  ;  nothing  that  would 
suggest  that  the  vote  of  the  ward  should  be  reduced  8  to  12  per 
cent,  to  make  it  conform  to  the  check  list. 

Holding  the  opinion  already  expressed,  in  relation  to  the  unreli- 
ability of  the  check  list,  and  finding  no  circumstances  corroborative 
of  the  presumption  of  fraud,  the  committee  are  constrained  to 
believe  that  the  discrepancy  shown  to  exist  in  this  case,  is  the 
natural  and  inevitable  result  of  an  attempt,  by  inexperienced  and 
very  incompetent  officers,  to  perform  the  double  and  difficult  duty 
of  receiving  votes  and  checking  the  names  of  persons  voting,  in  the 
hurry  and  excitement  of  a  warmly  contested  election,  and  that  the 
causes  which  produced  this  discrepancy  did  not  produce  or  afl:-ect 
the  result  of  the  election. 

In  support  of  the  fourth  allegation,  the  committee  find,  from  the 
testimony  of  the  ward  officers,  and  from  that  of  the  constable  in 
attendance  upon  them,  that  five  or  six  packages,  more  or  less, 
containing  from  three  to  six  votes  each,  were  found  amono-  the 
votes  taken  from  the  ballot-boxes  to  be  sorted  and  counted"  and 
that  the  warden,  after  consultation  with  other  ward  officers,  and 
witli  the  constable  previously  mentioned,  declared  them  to  have 
been  fraudulently  cast,  and  threw  them  out,  not  counting  them. 
it  appears  from  the  testimony  that  nobody  examined  these  pack- 
ages to  ascertain  for  whom  they  were  cast,  but  that  thev  bore  such 
unmistakable  evidence  of  having  been  fraudulently  and  surrepti- 
tiously cast,  that  the  U.  S.  supervisor,  who,  with  others,  is  contro- 
verting tins  election,  and  the  constable  referred  to,  both  of  whom 
are   iml.t.cally   opposed   to   the   warden,   testified   that,  in    their 


OEDWAY   V.    WOODBUKY.       HOUSE,    1871. 


169 


opinion,  all  the  votes  thrown  out  were  fraudulently  cast  and  should 
not  have  been  counted.  In  regard  to  the  question  as  to  whether 
all  the  votes  in  these  packages  were  fraudulentl}''  cast,  there  was 
not  the  least  conflict  of  testimony,  and  the  committee,  upon  this 
testimony,  are  convinced  that  they  were  so  cast.  As  to  whether 
one  vote  in  each  package  should  have  been  considered  a  legal  vote, 
and  counted  as  such,  it  appears  to  the  committee  that,  as  each  of 
the  two  packages  which  were  detected  in  being  cast,  was  accom- 
panied by  an  open  ballot,  which  must  have  been  counted,  and  as  it 
would  seem  improbable  that  these  packages  could  have  been  de- 
posited in  the  presence  of  the  supervisor,  nine  police  officers,  and 
others,  who  were  guarding  the  polls,  unless  each  had  been  screened 
in  a  similar  way,  every  vote  in  each  package  should  have  been 
rejected.  But  if  it  were  clear  that  one  ballot  in  each  package 
should  have  been  counted,  the  validity  of  the  election  would  not 
be  impaired  b}'  their  rejection,  inasmuch  as  they  are  insufficient  in 
numbers  to  change  the  result  of  the  election.  '(See  case  of  town 
of  ShrewHbirry  in  1832,  Chester  in  1852,  and  HopMnton  in  1852.) 
The  petitioners  claim,  in  the  seventh  and  eighth  allegations,  that 
the  ballots  were  not  correctly  counted  and  returned,  and  that  a 
proper  count  and  return  would  show  John  P.  Ordway  to  be  elected, 
and  not  John  W.  Regan. 

The  committee,  having  examined  the  returns  of  the  ward  officers, 
and  of  the  board  of  aldermen,  and  counted  all  the  votes  cast,  sub- 
mit the  following  statement :  — 


Ward  Count. 

Board  of  Alder- 
men's Count. 

Committee's 
Count. 

Charles  Levi  Woodbury, 

554 

569 

569 

John  J.  Murphy, 

520 

527 

528 

John  W.  Regan, 

471 

457 

460 

John  P.  Ordway, 

426 

448 

448 

Chas.  G.  Nazro,  . 

326 

324 

331 

Edward  F.  Maynard, . 

332 

315 

319 

John  M.  Maguire, 

283 

240 

250 

John  J.  Quinlan, 

187 

121 

125 

John  Donnelly,  . 

56 

57 

63 

All  others,  . 

_ 

9 

9 

170  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

From  which  it  appears  that,  although  the  number  of  votes  given 
for  the  several  candidates  was  in  no  instance  correctl}^  returned  by 
the  ward  officers,  the  persons  returned  by  them  as  having  been 
elected,  were  actually  elected. 

In  support  of  the  ninth  allegation,  it  appears  from  the  evidence 
of  the  constable  in  attendance  upon  the  warden,  that  he,  un- 
solicited, participated  to  some  extent  in  the  assorting  of  votes. 

In  the  judgment  of  the  majority  signing  this  report,  the  peti- 
tioners have  failed  to  show  that  a  single  illegal  vote  was  received 
and  counted  for  the  sitting  members,  or  that  a  legal  vote  cast  for 
the  petitioners,  or  either  of  them,  was  rejected,  or  that  the  election 
of  the  sitting  members  from  ward  5  was  not  a  fair  and  legal  ex- 
pression of  the  will  of  their  constituents,  and  therefore  they  recom- 
mend that  the  petitioners  have  leave  to  withdraw, 

[The  views  of  Messrs.  Boomer  and  Biscoe,  finding,  upon  the 
evidence,  that  the  election  should  be  declared  void,  were  reported 
by  them,  and  Mr.  Allen  also  submitted  a  separate  report  to  the 
same  effect.  Upon  the  presentation  of  the  reports,  the  substitute 
reported  by  the  minority,  declaring  the  seats  of  the  sitting  members 
vacant,  was  rejected,  by  a  vote  of  33  yeas  to  101  nays,  and  the 
report  of  the  majority  was  accepted.     H.  J.,  1871,  p.  203.] 


STIMSON   V.    BOARDMAN.       SENATE,    1872.  171 


SEN  ATE  — 1  872. 


Augustus  G.  Stimson  v.  Alonzo  W.  Boardman. 

Hon.  Daniel  E.  Safford,  Hon.  William  H.  Learnard,  Jr. ,  Hon.  George 
E.  Richardson,  Hon.  Samuel  M.  Griggs,  and  Hon.  William  L.  Smith, 

Special  Committee. 

Senate  Document,  No.  123.     March  6,  1872.     Report  by  all  the  Committee. 

Evidence.  Copies  of  Voting-list  rejected  as  Eride^ice.  Where  the  petitioner 
claimed  that  persons  were  allowed  to  vote  upon  the  names  of  other  voters,  and  sup- 
ported his  claim  by  the  evidence  of  a  number  of  persons,  that  they  had  not  voted  at 
the  election,  copies  of  the  voting-list,  made  by  the  clerks  of  the  petitioner,  cannot  be 
received  for  the  purpose  of  showing  that  the  names  of  such  persons  were  checked  as 
having  voted,  although  the  checks  on  the  original  voting-list,  used  at  the  election, 
had  been  erased  for  the  purpose  of  using  the  list  at  the  subsequent  municipal 
election. 

Fraud  and  Irregularities.  Result  must  have  been  affected  to  avoid  Elect io7i.  The 
fact  that  there  were  repeating  and  fraudulent  voting,  and  irregularities,  and  neglect 
of  duty  on  the  part  of  the  ward  ofHcers,  in  a  ward  forming  part  of  the  senatorial  dis- 
trict, will  not  justify  declaring  the  seat  of  the  returned  senator  vacant,  in  the 
absence  of  proof  that  such  fraud  or  irregularity  affected  the  result  of  the  election. 

Linus  M.  Child  for  petitioner. 

The  special  committee,  to  whom  was  committed  the  petition  of 
Augustus  G.  Stimson,  claiming  the  seat  in  the  senate  now  occupied 
by  Hon.  A.  W.  Boardman,  have  duly  considered  said  petition  and 
report : 

The  petitioner  did  not  press  his  claim  to  the  seat  of  Mr.  Board- 
man  in  the  senate,  but  claimed  that  the  election  in  that  senatorial 
district  should  be  declared  void,  and  the  seat  vacant,  for  the  reason 
that,  in  ward  2,  a  part  of  the  district,  at  the  election,  there  were 
such  irregularities,  illegal  practice,  and  frauds  in  voting,  committed 
so  frequently  and  flagranti}^  with  the  knowledge  and  connivance 
of  the  officers  presiding  at  the  polls,  that  the  returns  are  entitled 
to  no  confidence  and  should  be  thrown  out.  To  sustain  this,  the 
petitioner  produced  seventy  witnesses,  who,  with  the  exception  of 
five  or  six,  testified  that  they  did  not  vote  at  the  State  election  ; 
he  then  intending  to  go  farther,  and  show,  by  inspection  of  the 
check  lists,  that  the  names  of  these  witneses  were  checked  as 
having  voted  ;  but  after  the  hearing  was  commenced,  it  appeared. 


172  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

bj-  the  testimony  of  the  city  clerk,  that  the  checks  made  at  the 
State  election  had  been  erased,  so  that  the  same  lists  could  be  used 
at  the  municipal  election  in  December.  To  supply  this  deficiency, 
Mr.  Stimson  offered  copies  of  the  lists  made  by  his  clerks,  desiring^ 
the  committee  to  receive  such  copies  as  evidence  of  the  same  force 
and  credit  as  the  originals  ;  but  as  the  committee  did  not  think 
proper  to  do  this,  the  entire  evidence  of  these  witnesses  was  value- 
less.* 

The  remaining  testimony  was  substantially  as  follows:  The 
city  clerk  testified  that  nearly  every  name  in  the  lists,  from  ward 
2,  under  certain  letters,  C  and  D,  was  checked,  a  circumstance 
so  remarkable  that  he  called  the  attention  of  persons  in  the  office 
to  it.  Horace  Houghton  testified  that  he  saw  a  man,  about  noon, 
throw  a  handful  of  ballots,  jammed  up,  into  the  box;  that  he 
remonstrated,  and  the  voter  replied  that  he  voted  all  right,— voted 
the  democratic  ticlvct ;  that,  upon  appealing  to  the  inspector  to 
notice  this  irregularity',  the  inspector  said  that  he  knew  the  man, 
and  that  he  would  do  all  right,  otherwise  he  should  not  have 
allowed  him  to  vote  in  that  way.  Upon  cross-examination,  Mr. 
Houghton  could  not  say  positively,  that  the  part}^  threw  more  than 
one  vote,  though  it  seemed  so  to  him.  Another  witness,  Mr. 
McShane,  saw  a  person  cast  two  ballots, — one  at  half-past  one 
o'clock,  and  one  at  half-past  two, — who  said  that  he  was  not  a  voter, 
and  that  he  intended  to  have  voted  the  third  time,  but  was  afraid 
that  he  should  be  detected  by  the  inspectors.  A  voter  in  the  ward 
testified  that,  on  coming  to  the  polls,  he  found  that  his  name  had 
been  voted  on  and  was  checked.  The  warden  testified  that,  in 
three  instances,  two  ballots  were  thrown  together.  This  fraud  waa 
very  impartially  distributed  between  the  parties  ;  in  one  instance  the 
double  vote  being  republican,  in  one,  labor  reform,  and  another 
democratic.  In  another  instance  a  package  of  twenty-four  i-epub- 
lican  tickets,  folded  and  compactly  pressed  together,  was  taken 
from  the  box.     All  these  ballots  were  thrown  out. 

It  was  pressed  upon  the  committee,  as  a  fact  of  considerable 
significance,  that  there  was  a  very  great  disparity  between  the  vote 
ill  this  ward,  as  it  appeared  from  the  returns  made  by  the  ward 
oflicers  to  the  chief  of  police,  as  cast  between  2  and  4^  o'clock, 
and  the  number  of  persons  voting  during  that  interval.     The  vote 

•  [Note  iiy  the  Editoks.  It  has  been  held  that,  for  the  purpose  of  showing  that 
n  person  voted,  tlie  voting-list  is  admissible  in  evidence,  though  not  signed  by  the 
inspectors  or  clerks,  having  no  heading  to  denote  its  character,  and  never  having 
been  filed  in  the  clerk's  office.  People  v.  Pease,  27  N.  Y.  45.  Mr.  McCrary  adds  : 
"  But  it  would,  of  course,  be  necessary  to  prove,  by  evidence  aliunde,  that  such  a 
paper  was  the  poll-list  which  was  actually  kept  by  the  officers  of  the  election,  since 
it  would  not  prove  itself."    (Law  of  Elections,  ^  292.)] 


STIMSON    V.    BOARDMAN.       SENATE,    1872.  173 

for  governor,  as  reported,  stood,  at  2  o'clock,  717;  at  41  o'clock, 
1,542  ;  from  which  the  inference  would  be,  that  835  ballots  had  been 
thrown  between  those  hours  ;  whereas,  the  evidence  proved  that  the 
vote  after  2  o'clock  was  quite  light,  compared  with  the  vote 
between  12  o'clock  and  2  o'clock.  Mr.  C.  C.  Drew  was  present  at 
the  polls,  and  thought  that  the  majority  of  votes  were  cast  between 
12  and  2  ;  two  or  three  times  as  many  as  between  2  and  4^.  Mr. 
Heraenway  testified,  that  while  he  was  at  the  polls,  in  the  after- 
noon, the  vote  was  not  very- heavy.  Mr.  Curtis  was  present  at 
the  ward-room  during  most  of  the  day,  and  testified  that  the  voting 
between  12  and  2  o'clock  was  ver}'  rapid,  but  after  2  o'clock  the 
voting  was  verj-  light,  for  the  ward  ;  that  the  number  of  votes  cast 
could  not  have  exceeded  300.  In  explanation  of  this  discrepancy, 
Mr.  Geo.  W.  Close,  one  of  the  inspectors,  testified  that  at  2  o'clock 
there  were  250  split  tickets  that  had  not  been  counted,  and  the 
entire  vote  cast  between  1  and  2  o'clock  was  still  remainina;  in  the 
boxes  uncounted,  so  that  the  vote  reported  at  2  o'clock  did  not 
represent  the  number  of  votes  cast  up  to  that  hour. 

Although,  upon  this  testimony',  the  committee  were  satisfied  that 
there  were  irregularities,  and  neglect  of  duty  on  the  part  of  the 
oflficers  having  charge  of  the  polls,  in  ward  2,  they  are  not  of  the 
opinion  that  the  illegal  conduct  and  fraud,  charged  hy  the  petitioner 
were  so  proved  that  thej'  would  be  justified  in  finding  that  Mr. 
Boardman  is  not  entitled  to  his  seat.  They  therefore  report  that 
the  petitioner  have  leave  to  withdraw.  , 

[The  report  of  the  committee  was  accepted.     S.  J.  1872,  p.  193.] 


174  MASSACHUSETTS   ELECTION   CASES 1853-1885. 


HOUSE  — COMMITTEE    ON   ELECTIONS,  1872. 

Messrs.  Andrew  J.  Bailey,  of  Charlestovrn  Edward  L.  Bigelow  of 

Marlborough,  Henry  Jones  of  Stoughton,  William  H.   Aldrich  of 

Menclon,   William  A.   Adams  of   Waltham,   Thomas  M.    Carter  of 
Williamsburg,  aud  Albert  G.  Sinclair  of  Wiuchendon. 


T.  Preston  Burt  v.  William  Babbitt. 

House  Document,  No.  13.     Januaiy  20,  1872.     Report  by  all  the  commit- 
tee, except  Mr.  Aldrich. 

Recount  of  Votes  refused.  General  Rule  on  Recount.  In  the  absence  of  any  proof 
or  evidence  of  fraud  in  the  acts  of  the  election  officers,  or  of  illegality  in  the  manner 
of  calling,  holding,  or  conducting  the  meeting  at  which  the  election  is  held,  or  in  the 
manner  of  ascertaining  the  result,  unless  the  petitioner  shows  a  reasonable  ground 
for  supposing  an  error  in  the  count,  as  made  and  returned  by  the  election  officers, 
other  than  the  mere  fact  of  there  being  but  a  few  votes  between  the  number  cast  for 
the  couiestant  and  the  sitting  member,  the  votes  will  not  be  recounted. 

William  H.  Fox  for  petitioner. 
Chester  L  Reed  for  sitting  member. 

The  Committee  on  Elections,  to  wliom  was  referred  the  petition 
of  T.  Preston  Burt  of  Berklej^,  contestant  for  the  seat  now  held  by 
"William  Babbitt  of  Berkle}',  as  representative  from  the  fifth  Bristol 
district,  report  that  it  appears  from  evidence' before  the  committee, 
that  the  vote  in  the  towns  of  Berkley,  Dighton,  Seekonk  and  Re- 
hoboth,  composing  the  district,  was  as  follows  :  — 

In  Berkley,  whole  number  of  votes  for  Babbitt,  97 

I)io;iiton,      "  "  "  "  42 

Kehoboth,   "  "  "  "  64 

Seekonk,     "  "  "  «  68 


an 

c,    70. 

(t 

106. 

!.(, 

67. 

u 

14. 

Making  a  total  for  William  Babbitt,  of  261 ;  for  T.P.  Burt,  257. 

Tlius  showing  that,  by  this  count,  as  made  and  returned  by  the 

selectmen  of  the  several  towns,  William  Babbitt  was  elected  by  a 

plurality  of  four  votes  over  T.  Preston  Burt. 

The  contestant  based  his  claim  on  two  grounds  :  — 

1st.     "  That  the  count,  as  returned  from  the  several  towns,  was 

erroneous." 

2d.     "  That  votes  were  cast,  in  the  town  of  Berkley,  for  William 

Babl)itt  by  "  three  persons  not  qualified  to  vote,  "  and  their  votes 

were  counted  and  returned  as  legal  votes." 


HARDING,    PET.      HOUSE,    1872.  175 

The  second  claim  was  subsequent!}^  abandoned  by  the  con- 
testant, and  be  rested  his  contest  on  the  ground  that  the  count,  as 
made  and  returned  by  the  selectmen  of  the  several  towns,  was 
erroneous. 

The  committee  have  been  led  to  their  decision  in  this  case  by 
one  general  rule,  whicli  they  have  adopted,  and  which  they  now  ask 
the  house  to  endorse,  and  thus  furnish  a  precedent,  not  onl}^  for  the 
present  committee,  but  for  future  committees. 

The  rule  is  this  :  That,  in  the  absence  of  any  proof  or  evidence 
of  fraud  in  the  acts  of  the  selectmen,  or  of  illegality  in  the  manner 
of  calling,  holding,  or  conducting  the  meeting  at  which  the  election 
is  held,  or  in  the  manner  of  ascertaining  the  election  of  represen- 
tative, unless  the  petitioner  shows  a  reasonable  ground  for  sup- 
posing an  error  in  the  count,  as  made  and  returned  by  the  select- 
men, other  than  the  mere  fact  of  there  being  but  a  few  votes 
between  the  number  of  votes  thrown  for  the  contestant  and  the 
sitting  member,  the  committee  will  not  recount  the  ballots  that 
may  have  been  preserved. 

No  other  evidence,  therefore,  having  been  offered  before  jonv 
committee,  in  support  of  the  petitioner's  claim,  other  than  the  fact 
that  there  is  but  four  votes  difference  in  the  number  of  votes  cast 
for  William  Babbit,  the  sitting  member,  .and  the  contestant,  the 
committee  report  that  the  petitioner  have  leave  to  withdraw. 

[The   report   of  the   committee   was   accepted.     H.    J.,  1872, 

p.  52] 


William  M.  Harding  et  als.,  Petitioners. 

House  Documeut,  No.    15.     January   23,    1872.     Eeport  by  Andrew  J. 

Bailey,  Chairman. 

Irregularity.  Failure  to  deliver  Voting  List  at  Time  required.  Where  the  town  of 
Maynard  was  incorporated,  out  of  certain  territory  in  the  towns  of  Stow  and  Sud- 
bury, under  an  act  providing  that  the  town,  for  the  purpose  of  electing  representa- 
tives, should,  for  a  certain  time,  remain  part  of  said  latter  towns,  and  that  the  select- 
men of  Maynard  should  make  a  list  of  voters,  and  post  it  in  Maynard,  and,  after 
coiTecting  it,  as  required  by  law,  should  deliver  the  list  of  the  voters,  qualified  to 
vote  in  either  of  said  towns,  to  the  selectmen  of  such  town,  seven  days,  at  least,  before 
the  election,  failure  on  the  part  of  such  selectmen,  so  to  deliver  such  list,  until  the 
day  before  the  election,  although  such  neglect  caused  a  rumor  to  become  current  in 
Maynard,  that  none  of  its  inhabitants  would  be  allowed  to  vote  in  Sudbury,  resulting 
in  the  omission,  on  the  part  of  several  voters,  to  go  to  Sudbury  to  vote,  other  inhabi- 
tants, however,  going  there  and  voting,  [will  not  invalidate  the  election. 


176  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

The  Coniraittee  on  Elections,  to  whom  was  referred  the  petition  of 
William  M.  Hardinii  and  others,  inhabitants  of  the  town  of  May- 
uard  praying  that  the  seat  of  the  member  from  the  nineteenth  Mid- 
dlesex  district  be  declared  vacant,  report :  That  by  chapter  198, 
of  the  Acts  of  1871,  certain  territory  of  the  towns  of  Stow  and  Sud- 
bury was  incorporated  into  the  town  of  Mayuard ;  section  6  of 
which  act  is  as  follows  :  — 

Sect.  6.  The  town  of  Maynard,  for  the  purpose  of  electing  represen- 
tatives t«  the  general  court,  until  the  next  decennial  census,  or  until 
another  apportionment  be  made,  shall  remain  a  part  of  said  towns  of 
Stow  and  Sudbury,  and  vote  therefor  at  such  places  as  said  towns  of 
Stow  and  Sudbury  shall  vote  ;  and  the  selectmen  of  Maynard  shall  make 
a  true  list  of  all  persons  within  their  town  qualified  to  vote  at  every 
such  election,  and  shall  post  up  the  same  in  said  town  of  Maynard,  and 
shall  correct  the  same  as  required  by  law,  and  shall  deliver  a  true  list  of 
all  such  voters  as  are  entitled  to  vote  in  said  towns  of  Stow  and  Sudbury, 
respectively,  to  the  selectmen  thereof,  seven  days  at  least  before  said 
election,  to  be  used  thereat. 

It  was  claimed  by  the  petitioners,  and  it  appeared  before  the 
committee,  that  this  section  was  not  strictly  complied  with  by  the 
selectmen  of  Maynard,  inasmuch  as  they  delivered  the  list  pro- 
vided for  by  said  section  to  the  selectmen  of  Sudbury  only  one  day 
before  the  election. 

It  was  also  claimed  by  the  petitioners,  and  it  appeared  to  the 
committee,  that  by  this  neglect  a  rumor  became  current  in  Maynard 
that  the  inhabitants  of  this  town  would  not  be  allowed  to  vote  in 
Sudbury,  and  that  on  this  account  several  voters  neglected  to  go  to 
the  place  of  meeting  and  vote.  No  claim  is  made  that  any  of  the 
petitioners  tried  to  vote. 

Your  committee  are  of  the  opinion  that  this  neglect  of  the 
selectmea  of  Maynard  did  not,  in  itself,  deprive  any  person  of 
his  vote,  and  it  appeared  in  evidence  that  eight  of  the  inhabitants 
of  Maynard  did  vote  in  Sudbury. 

Therefore,  inasmuch  as  the  selectmen  of  Maynard  were  the  only 
officers  guilty  of  any  neglect,  and  as  this  neglect  gave  rise  to  the 
furaor  that  deterred  the  petitioners  from  trying  to  vote,  your  com- 
mittee are  of  the  opinion  that  the  inhabitants  of  Maynard,  if  ag- 
grieved, should  1)e  required  to  seek  their  redress  in  punishing  the 
selectmen  for  their  neglect,  and  in  electing  selectmen  who  will  be 
more  careful  to  attend  to  the  duties  imposed  upon  them. 

They  accordingly  recommend  that  the  petitioners  have  leave  to 
withdraw 

[The  report  of  the  committee  was  accepted.     H.  J.,  1872,  p.  59.] 


DAVIS   V.    MURPHY.      HOUSE,    1872.  177 


George  E.  Davis  v.  Patrick  Murphy. 

House  Document,  No.  69.  February  U,  1872.  Report  by  Messrs.  Bige- 
Low,  Sinclair,  Jones  and  Adams,  —  Messrs.  Bailey,  Carter  and 
Aldricii  dissenting. 

Recount  by  Aldermen,  ichere  Ballots  were  not  properly  returned.  Where  the  bal- 
lots cast  at  an  election,  in  certain  wards  in  a  city,  were  not  transmitted  to  the  city 
clerk,  by  the  constable  in  attendance  at  tlie  election,  nor  by  one  of  the  ward  officers, 
other  than  the  ward  clerk,  and  the  ward  clerk  did  not  retain  custody  of  the  seal,  as 
required  by  Acts  of  the  year  1863,  chap.  M4,  ^  2  (Pub.  Stats.,  chap.  7,  ^  28),  but  the  bal- 
lots were  returned  by  the  clerks  of  the  wards,  or  other  unauthorized  persons,  and 
the  ward  seals  were  returned,  with  the  ballots,  to  the  city  clerk,  although  there  was 
no  evidence  of  fraud,  or  tampering  with  the  ballots,  it  was  held,  that  such  failure  to 
comply  with  the  statute  regarding  the  return  and  preservation  of  ballots,  deprived 
the  aldermen  of  any  right  to  recount  such  ballots. 

Recount  by  Aldermen.  Petition  for,  not  made  xoithin  prescribed  Time.  Where  the 
written  notice,  on  the  part  of  ten  or  more  citizens  of  any  ward,  required  for  a  recount 
and  examination,  by  the  aldermen,  of  the  votes  cast  in  the  ward,  is  not  given  to  the 
city  clerk  within  the  time  provided  by  law,  the  aldermen  have  no  right  to  recount 
such  votes. 

Recount  by  House  of  Representatives.  Votes  must  be  properly  preserved,  to  justify 
Recount.  Where  the  votes  cast  at  an  election,  in  a  town,  are  not  preserved  in  the 
manner  required  by  law,  but,  after  the  adjournment  of  the  meeting,  are  taken,  in  a 
ballot  box,  into  another  room,  by  the  selectmen,  then  tied  up  in  a  paper,  put  in 
an  .unlocked  closet,  and  a  day  or  two  later,  sealed  up,  but  not  delivered  to  the  town 
clerk  until  within  a  day  or  two  previous  to  tlie  hearing  before  the  committee  of  the 
house  of  representatives,  such  votes  have  not  been  preserved  in  such  a  manner 
as  to  justify  a  recount  by  the  house  of  representatives. 

Recomit  refused.  Where  the  votes  cast,  in  certain  wards  in  a  city,  were  not  pre- 
served and  transmitted  to  the  city  clerk,  in  the  manner  required  by  law,  but  were 
transmitted  by  unauthorized  persons,  with  the  ward  seals  enclosed  with  them,  and 
afterwards  were  recounted  by  the  aldermen,  without  authority,  by  which  recount  the 
declared  result  of  the  election  was  changed,  the  committee  refused  to  recount  the 
votes,  and  allowed  the  declared  result  to  stand. 

Evidence.  A  voter  cannot  be  compelled  to  state  for  whom  he  voted,  but  his 
declaration  to  others,  as  to  how  he  voted,  is  competent  evidence. 

W.  H.  P.  'W KiGnT  for  petitioner. 

R.  M.  Morse.  Jr.  for  sitting  member. 

The  Coinmittee  on  Elections,  to  whom  was  referred  the  petition 
of  George  E.  Davis,  claiming  the  seat  in  the  house  of  represen- 
tatives, now  held  b}'  Patrick  Murphy  of  Lawrence,  as  a  member 
from  the  third  Essex  representative  district,  submit  the  following 
report : 

The  third  Essex  district  consists  of  the  cit}'  of  Lawrence  (six 
wards)  and  the  town  of  Methuen.  The  petitioner  assigns,  as  the 
ground  for  his  claim,  that  the  original  returns  from  wards  1,  2,  3, 


178  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

4  and  5,  in  Lawrence,  were  grossly  incorrect.  That  a  reconnt  of 
the  votes,  cast  in  those  wards,  shows  that  the  errors  in  the  original 
count,  and  return  cf  such  votes,  were  of  such  magnitude  as  to  give 
the  sittin-  member  an  apparent  plurality  in  the  whole  district. 
\Vherea3,°a  correct  count  of  the  votes  in  those  wards,  with  the 
oric^inal  count  of  ward  6,  and  of  the  town  of  Methuen  (the  whole 
district),  shows  that  the  petitioner,  and  not  the  sitting  member,  has 
a  plurality  of  votes  legally  cast  for  representative  in  this  district. 
The  petitioner  further  alleges  that,  if  a  recount  of  the  votes  cast 
in  the  whole  district  shall  be  had,  it  will  appear  that  he  received 
a  plurality  of  votes  cast  for  representative,  and  that  he  is  entitled 

to  a  scat  in  the  house. 

From  the  records  of  the  city  of  Lawrence  it  appeared  that  in  that 
city  the  petitioner  received  1,205  votes,  and  the  sitting  member  1,346 
votes ;  and  from  the  records  of  Methuen  it  appeared  that  in  that 
town  the  petitioner  received  290  votes,  and  the  sitting  member  157 
votes,  making  a  total  vote  in  the  district  of  1,495  votes  for  the 
petitioner  and  1,503  votes  for  the  sitting  member,  —  a  plurality  of 

eight  votes. 

Upon  that  result,  Patrick  Murphy  was  declared  to  be  lawfully 
elected,  and  received  his  certificate  of  election  as  a  member  of  the 
house  of  representatives,  from  the  third  Essex  district,  and  was 
admitted  to  a  seat  in  this  house. 

It  appeared  in  evidence  tliat,  ten  days  after  the  State  election, 
viz.,  on  the  17th  day  of  November,  1871,  the  aldermen  of  the  city 
of  Lawrence  made  a  recount  of  the  ballots  thrown  in  wards  1,2, 
3,  4  and  5  of  the  city  (petitions  having  been  sent  in  from  those 
wards,  signed  by  ten  or  more  citizens,  asking  for  a  recount),  and 
found  that,  taking  the  vote  from  ward  6  of  the  city,  as  returned  by 
the  ward  officers,  and  the  vote  of  the  town  of  Methuen,  as  declared 
by  the  selectmen,  and  recorded  by  the  town  clerk,  the  result  was 
as  follows :  — 

From  recount  of  five  wards  in  Lawrence,  Patrick  Murphy  had 
1,237  votes  ;  George  E.  Davis  had  1,098  votes.  In  ward  6,  as  re- 
corded, Davis  had  121  votes,  and  Murphy  112  votes;  while,  in 
Methuen,  Davis  had  290  votes,  and  Murpliy  157  votes ;  giving,  as 
the  new  result  in  the  district,  George  E.  Davis  1,509,  and  Patrick 
Murphy  1,506  votes,  — or  a  plurality  of  three  votes  in  favor  of  the 
petitioner. 

Your  committee  were  of  the  opinion  that  the  aldermen  of  the 
city  of  Lawrence  had  no  authority  to  recount  the  votes :  first,  for 
the  reason  that  section  2  of  chapter  144  of  the  Acts  of  1863*  had 
been  grossly  violated. 

*  Pub.  Stats.,  chap.  7,  {  28. 


DAVIS    V.    MURPHY.       HOUSE,    1872.  179 

Your  committee  interpret  the  meaning  of  that  section,  as  being 
something  more  than  directory  to  the  ward  officers,  and  that  its  pro- 
visions must  be  complied  with,  to  preserve  the  purity  of  the  ballots, 
so  that  a  recount  could  be  made  by  the  proper  authorities.  And  it 
would  seem  that  the  only  remed}'  for  persons  aggrieved,  b}'  reason 
of  ward  officers  not  complying  strictly  with  this  statute,  would  be  to 
enforce  the  5th  section  of  this  same  chapter  (Pub.  Stat.,  Chap.  7, 
§  30),  wherein  it  provides  for  a  punishment  for  neglect  of  dutj',  by 
a  fine  of  not  less  than  twenty  or  more  than  two  hundred  dollars, 
or  by  imprisonment  in  the  county  jail  for  a  term  not  exceeding  one 
year. 

Upon  the  evidence  before  j'our  committee,  it  appeared  that  the 
ballots  from  nearly  all  the  wards  of  the  city  of  Lawrence  were 
returned  by  the  clerks  of  the  wards,  or  some  other  unauthorized 
person.  And  that,  from  all  the  wards,  the  ward  seals  were  returned, 
with  the  ballots,  to  the  city  clerk. 

No  evidence  was  introduced  to  show  fraud,  or  that  the  ballots 
had  been  tampered  with  previous  to  the  recount  by  the  aldermen, 
but  j'our  committee  were  of  the  opinion  that,  if  they  overlooked 
this  violation  of  the  law,  and  judged  that  the  aldermen  had  a  legal 
right  to  recount  the  ballots,  it  would  be  establishing  a  dangerous 
precedent,  tending  to  uncertainty'  and  fraud  in  elections.  There- 
fore, believing  that  the  recount  by  the  aldermen  was  illegal,  and  it 
was  tampering  with  the  ballots,  j'our  committee  are  of  the  opinion 
that  it  would  be  neither  right  nor  just  to  take  the  recount  by  the 
aldermen  as  the  correct  result  of  the  election ;  neither  would  it  be 
right  or  just  to  take  the  ballots  as  they  now  are,  purporting  to  be 
some,  and  all,  that  were  cast  at  the  last  State  election,  in  the 
third  Essex  representative  district,  and  count  them  at  the  present 
time. 

Your  committee  also  think  that  the  aldermen  of  the  city  of  Law- 
rence had  no  authoritj-  to  recount  the  ballots,  at  the  time  they  did, 
for  the  reason  that  the  notice  to  the  city  clerk  had  not  been  given 
within  the  proper  time. 

Sects.  12  and  13  of  chap.  8  of  the  General  Statutes,  relating  to 
the  election  of  representatives  to  the  general  court  (Pub.  Stats., 
chap.  8,  §§  10,  11  and  12),  read  as  follows: — 

Sect  12.  The  clex-ks  of  cities,  towns  and  wards,  composing  such 
districts,  shall  meet  at  noon,  on  the  day  following  an  election  for  repre- 
sentatives, at  the  place  so  designated,  and  shall  examine  and  compare 
such  transcripts,  and  ascertain  what  persons  have  been  elected.  If  any 
error  appears  in  a  transcript  or  return,  the  clerks  shall  forthwith  give 
notice  thereof  to  the  officers  required  to  make  the  return,  and  such  offi- 
cers shall  forthwith,  in  confurmit}"  with  the  truth,  and  under  oath,  make  a 


180  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

new  return  which,  whether  made  with  or  without  such  notice,  shall  be 
received  and  examined  by  said  clerks,  within  two  days  after  the  time 
appointed  for  the  meeting;  and,  for  that  purpose,  the  meetmg  may  be 
adjourned,  not  exceeding  two  days.  .        <■  ,, 

No  return  shall  be  rejected,  when  the  number  of  votes  given  for  each 
candidate  can  be  ascertained.  , 

Sect  13.  Such  clerks  shall,  at  such  meeting,  make  out,  under  their 
hand«  a  complete  return  of  all  votes  cast  for  representatives,  in  the  dis- 
trict the  names  of  all  persons  for  whom  such  votes  were  given,  and  the 
number  of  votes  for  each  person  ;  and  a  record  of  the  return  shall  be 
made,  in  the  book  of  records  of  their  respective  cities,  towns  and  wards, 
within  four  days  after  the  day  of  the  meeting. 

Sect.  3  of  chap.  144,  Acts  of  the  year  1863  (Pub.  Stats.,  chap.  7, 
§  36),  reads  :  "If,  Avithin  the  time  prescribed  by  law  for  forwarding 
returns  or  declaring  the  results  of  an  election,  ten  or  more  citizens 
of  any  ward  shall  notify  the  city  clerk,  etc."  If  that  portion  of 
the  section  is  complied  with,  the  board  of  aldermen  shall,  within 
the  time  required  by  law  for  examining  the  returns  or  declaring 
the  results  of  the  election,  examine  the  ballots,  and  determine  the 
questions  raised. 

It  seems  to  A'our  committee,  that  the  proper  time  to  give  notice 
to  the  city  clerk,  and  the  recount  by  the  mayor  and  aldermen,  of 
the  ballots  cast  for  representatives,  would  be  within  four  days  from 
the  time  of  election,  —  interpreting  the  meaning  of  declaring  the 
results  of  an  election  for  representatives  to  the  general  court,  to 
be,  whenever  the  clerks  of  towns  and  cities,  comprising  a  represen- 
tative district,  have  met  and  compared  transcripts,  and  ascertained 
what  persons  have  been  elected. 

The  selectmen  and  town  clerk  of  Methuen  testified  that  the  law, 
in  regard  to  the  preservation  of  ballots  in  towns,  passed  by  the 
legislature  in  1871,  was  not  complied  with  by  them,  at  the  last 
State  election  ;  but  that  the  ballots,  after  the  adjournment  of  the 
meeting,  had  been  taken  out,  in  a  ballot  box,  into  another  room,  by 
the  selectmen,  then  tied  up  in  a  paper,  put  in  a  closet,  which  was 
not  locked,  and,  within  a  day  or  two,  sealed  up;  but  were  never 
delivi-rcd  to  the  town  clerk,  till  within  a  day  or  two  previous  to 
the  first  hearing  b}'  the  committee. 

It  seemed  to  the  committee,  that  the  ballots  from  the  town  of 
Methuen  could  not  be  recounted. 

From  further  evidence  before  your  committee,  it  appeared  that 
illegal  votes  were  cast  in  the  city  of  Lawrence,  at  the  last  State 
election.  The  committee  were  unanimous  as  to  their  opinion  in 
regard  to  three  votes. 

One,  M.  W.  Cox,  voted  in  ward  1,  in  the  city  of  Lawrence.     He 


DAVIS   V.    MURPHY.      HOUSE,    1872.  181 


had  not  lived  long  enough  in  the  State  to  be  entitled  to  vote.  He 
teslilied  that  he  voted  for  George  E.  Davis,  for  representative. 

One,  Holmes  Crowpher,  voted  in  ward  1.  He  was  not  legally 
assessed.  A  majority  of  the  committee  thought  he  had  no  legal 
right  to  vote. 

The  question  was  asked  him,  for  whom  he  voted.  The  com- 
mittee ruled  that  he  need  not  answer  unless  he  chose.  He  declined 
to  answer.  Other  evidence  was  introduced,  to  show  that  he  said 
he  voted  the  labor  reform  ticket,  and  still  further  evidence  was  intro- 
duced, to  show  that  the  name  of  George  E.  Davis  was  upon  that 
ticket, as  a  representative,  for  the  third  Essex  district.* 

One.  L.  S.  Herse}',  voted  in  ward  5.  In  the  opinion  of  your 
committee,  he  had  not  lived  there  long  enough  to  entitle  him  to 
vote. 

In  answer  to  the  question.  For  whom  did  you  vote?  he  replied  : 
Did  not  know  what  name  was  on  my  ticket.  In  reply  to  the  ques- 
tion, "What  ticket  did  you.  vote?  he  said :  Voted  the  republican 
ticket.  In  reply  to  the  question.  Did  you  erase  any  name  on  the 
ticket?  he  said  he  did  not.  Upon  other  evidence,  it  was  shown 
that  the  name  of  George  E.  Davis  was  upon  the  republican  ticket, 
for  representative,  from  the  third  Essex  district. 

Your  committee,  therefore,  think  that,  if  they  should  admit  that 
the  aldermen  of  the  city  of  Lawrence  had  a  right  to  recount  the 
ballots,  and  that  they  should  be  counted  at  the  present  time,  it 
would  be  fair  to  presume,  from  other  evidence  that  was  introduced, 
that  Patrick  Murphj-  did  receive  a  plurality  of  votes  for  represen- 
tative, from  the  third  Essex  district,  at  the  last  State  election,  and 
is  therefore  entitled  to  his  seat  in  the  house  of  representatives. 

We  would  recommend  that  the  sitting  member,  Patrick  Murphy, 
is  entitled  to  his  seat.  • 

[A  minorit}-  of  the  committee,  consisting  of  Messrs.  Bailey, 
Carter  and  Aldrich,  dissented  from  the  conclusions  of  the  ma- 
jority, and  recommended  that  the  seat  in  controversy'  be  declared 
vacant.  The  report  of  the  committee  was  accepted.  H.  J.,  1872, 
p.  137.]t 

*  [On  tbe  question,  how  far  the  declarations  of  a  person,  not  qualified  as  a  voter, 
regarding  his  vote,  and  for  whom  cast,  are  admissible  as  evidence,  in  an  election  con- 
troversy, see  foot-note,  ante,  p.  150  ] 

t  [Note  by  the  Editoes.  1.  By  the  journal  of  the  house  for  1872,  pp.  3  and  4, 
it  appears  that,  on  the  first  day  of  the  session,  two  certificates  were  presented,  from 
the  third  Essex  district :  No.  1,  in  favor  of  Patrick  Murphy,  duly  signed  by  the  mayor 
and  aldermen  and  city  clerk  of  Lawrence,  and  the  town  clerk  of  Methuen,  declaring 
said  Murphy  duly  elected. 

No.  2  was  a  petition  for  a  recount  in  Lawrence,  and  contained  an  amended  return, 


182  MASSACHUSETTS   ELECTION    CASES 1853-1885. 


George  M.  Hobbs  v.  George  Bartholmesz. 

House  Document,  No.  130.    March  1, 1872.    Report  by  William  A.  Adams. 

Mistake  in  name  of  Candidate.  Votes  for  George  Bartholomesz  will,  in  an  election 
controversy,  be  counted  for  George  Bartholmesz,  upon  proof  that  the  latter  was  a 
regular  candidate  of  his  party,  and  that  his  name  was  by  mistake  printed  Bartholo- 
mtsz,  upon  a  split  ballot,  upon  which  it  was  intended  to  place  the  names  of  the  regu- 
lar nominees  of  that  party  for  representative. 

Edward  Avery,  for  petitioner. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  George  M.  Hobbs,  contesting  the  seat  now  held  by  George 
Bartholmesz,  for  the  third  Norfolk  district,  having  heard  the  par- 
ties, report :  That,  at  the  last  State  election  for  representatives,  in 
the  third  Norfolk  district,  the  vote  was  as  follows  :  — 

For  Albert  Palmer,     .......  1,217 

Brownell  Granger, 1,255 

George  Bartholmesz, 1,126 

George  M.  Hobbs, 1,073 

The  district  is  entitled  to  three  representatives,  and  the  seats  of 
Albert  Palmer  and  Brownell  Granger  are  not  questioned. 

The  petitioner,  George  M.  Hobbs,  contests  the  seat  of  George 
Bartholmesz  for  the  following  reasons  :  — 

First.  Because  there  were  errors  in  counting  the  ballots. 


'& 


signed  by  the  clerk  of  the  city  of  Lawrence,  and  declared  George  E.Davis  duly 
elected. 

A  motion  made  to  refer  both  certificates  to  a  special  committee  of  five,  was  re- 
jected by  a  vote  of  07  yeas  to  92  nays.    H.  J.,  1872,  p.  4. 

It  was  then  voted  that  Patrick  Murphy  has  &,  prima  facie  right  to  occupy  the  seat 
for  the  third  Essex  district:  yeas,  121 ;  nays,  not  counted. 

2.  The  editors  agree  that  the  decision  of  the  house  in  this  case  was  coi-rect.  But 
tlicy  do  not  understand  the  final  remark  of  the  committee.  They  say,  in  substance, 
that,  conceding  the  right  of  the  aldermen  of  Lawrence  to  recount  as  they  did,  and 
that  the  votes  should  be  counted  by  the  committee,  still  it  would  be  fair  to  pre- 
sume, from  other  evidence  introduced,  that  Patrick  Murphy  did  receive  a  plurality 
of  the  votes  cast  in  said  district.  The  evidence  was,  that  three  persons  voted  illegally 
for  Mr.  Davis.  His  plurality,  as  declared  by  the  recount,  was  three  votes.  Deduct- 
ing these  from  Mr.  Davis'  entu-e  vote,  and  there  was  a  tie  in  the  district. 

Semble.  It  seems  that,  where  tw^o  certificates  for  the  same  seat  in  the  house  of 
representatives,  arc  presented  by  two  difiFcrent  persons,  on  the  day  of  the  organiza- 
tion of  the  house,  one  purporting  to  be  the  result  of  the  original  count  of  the  election 
officers,  and  the  other  the  result  of  a  recount,  the  seat,  prima  facie,  will  be  given  to 
the  person  holding  the  first  certificate.] 


HOBBS   V.    BAETHOLMESZ.      HOUSE,    1872.  183 

Second.  Because  rotes  were  cast  for  George  Bartholomesz,  which 
were  counted  for  Bartholmesz,  when  they  should  have  been  re- 
jected, or  counted  as  for  another  person. 

The  following  facts  were  agreed  upon  :  That  one  of  the  regular 
republican  nominees,  for  representative,  was  George  Bartholmesz, 
and  that  his  name  was  on  the  "  regular  republican  ballot"  ;  that 
a  "  split  ballot  "was  printed  and  circulated,  bearing  the  same  names 
as  the  "  regular  republican  ballot,"  with  the  exception  of  the  names 
of  the  candidates  for  senator  and  register  of  probate,  and  the  name 
of  George  Bartholomesz,  for  representative,  in  the  place  of  George 
Bartholmesz,  and  that  some  of  these  ballots  were  probabh'  thrown  ; 
that  there  was  no  person  bj-  the  name  of  George  Bartholomesz 
living  in  the  district ;  and  that  the  ballots  thrown  at  the  election  for 
representative  have  been  preserved. 

On  these  facts,  the  petitioner  contends  that  the  committee  should 
recount  the  ballots,  and  ascertain  the  number  thrown  for  George  M. 
Hobbs,  George  Bartholomesz  and  George  Bartholmesz  ;  that  the 
votes  for  Bartholomesz  should  not  be  counted  for  Bartholmesz  ; 
that  no  evidence  should  be  allowed,  to  show  that  the  votes  for  Bar- 
tholomesz were  intended  for  Bartholmesz  ;  and  that,  if  there  were 
more  votes  thrown,  with  the  name  of  George  M.  Hobbs,  than  with 
the  names  of  George  Bartholomesz  or  Bartholmesz.  he,  Hobbs,  was 
entitled  to  the  seat. 

The  sitting  member  claims,  that,  there  being  no  such  person  as 
George  Bartholomesz  living  in  the  district,  he  should  be  allowed  to 
show  that  this  name  is  a  mistake  of  the  printer,  and  is  simplj'  a 
misspelling  of  Bartholmesz,  and  that  no  such  difference  was  known 
until  after  the  election  ;  and  introduced  Jacob  Jacobs,  a  resident 
and  voter  in  this  district,  who  testified  that  he  prepared,  and  had 
printed,  the  "split  ballot"  referred  to,  and  that  he  directed  the 
printer  to  place  upon  the  "  split  ballot"  the  same  names  as  were 
on  the  "  regular  republican  ballot,"  with  the  exception  of  the  names 
for  senator  and  register  of  probate  ;  that  these  ballots  were  circu- 
lated, and  he  never  knew,  or  heard,  an}'  mention  made,  of  an}-  dif- 
ference in  the  names  of  the  representatives,  until  the  Sunday  after 
the  election. 

On  these  facts  and  arguments,  3-our  committee,  without  going 
into  any  elaborate  argument  on  the  subject,  submit  the  case  to  the 
consideration  of  the  house,  with  the  recommendation  that  the  peti- 
tioner have  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1872, 
p.  214.] 


184  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 


HOUSE-COMMITTEE    ON    ELECTIONS,    1873. 

Ki.WAKP  L.  BiGELOW  of  Marlborongli,    Chairman,  Thomas  Ingalls  of 
'  .Marbleliead,  Austin  IIawley  of  Sandisfleld,  John  W.  Regan  of  Boston, 
Geokge  Copeland  of    Easton,    A.    S.    Atherton    of    Warwick    and 
Dennis  Bonner  of  Boston. 

Alfred  J.  French  v.  Horace  C.  Bacon. 

House  Document,  No.  10.     January  15,  1873.     Report  by  all  the  Com- 
mittee. 

Evidence.  Ex-parte  Affidavits.  Where  the  petitioner,  to  prove  that  more  votes 
were  cast  for  him,  in  a  ward,  than  were  returned  for  him  by  t lie  election  officers, 
presented  the  affidavits  of  thirty-nine  more  persons  than  there  were  votes  returned 
for  him,  taken  two  months  after  the  election,  each  person  swearing  that  he  voted  for 
the  petitioner,  it  was  held,  that  it  would  be  a  dangerous  precedent  to  unseat  a  mem- 
ber upon  such  affidavits  alone,  without  evidence  of  fraud  on  the  part  of  election 
officers,  but  such  affidavits  might  be  considered,  in  connection  with  other  evidence, 
tendinj;  to  establish  fraud. 

Ineytilarities.  Mere  irregularities  in  the  conduct  of  the  election,  in  the  absence 
of  fraud,  or  proof  that  the  result  was  affected,  will  not  invalidate  the  election. 

Edgar  J.  ^■r-e.u^ix^  for  petitioner. 

Robert  M.  Morse,  Jr.  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  tbe  petition 
of  Alfred  J.  French,  asking  f  >r  the  seat  in  the  house  of  representa- 
tives now  occupied  bj^  Horace  C.  Bacon,  from  the  third  Essex 
district,  having  heard  the  petitioner,  submit  the  following  report : 

At  the  request  of  the  committee,  the  petitioner  filed  the  follow- 
ing statement,  in  support  of  his  petition  :  — 

"  Essex  Representative  District,  No.  3,  is  composed  of  the  six 
wards  of  the  citj'  of  Lawrence,  and  the  town  of  Methuen. 

"  IJy  the  returns  of  the  ward  and  town  officers,  your  petitioner 
received  2,lGo  votes,  and  Horace  C.  Bacon  2,162  votes,  electing 
your  petitioner. 

''  A  recount  of  the  votes  of  the  several  wards  of  the  city  of  Law- 
rence (but  not  of  Methuen),  gave  Mr.  Bacon  14  additional  votes, 
increa.sing  his  total  vote  to  2,177,  the  vote  of  your  petitioner  re- 
maining as  before. 

"  In  ward  4,  Lawrence,  the  return  of  the  ward  officers,  changed 
only  one  vote  ;    by   the  recount,  your  petitioner  was  given   271 


FRENCH   V.    BACON.      HOUSE,    1873.  185 

votes,  and  Mr.  Bacon  584.  On  the  check-list,  returned  and 
certified  by  the  ward  officers  as  having  been  used  at  said  election, 
and  lierewith  produced,  855  names  are  checked  as  having  voted, 
corresponding,  within  one,  of  the  aggregate  vote  of  your  petitioner 
and  the  sitting  member  in  said  ward. 

''  Your  petitioner  presents  the  depositions  of  310  legal  voters  in 
said  ward,  whose  names  are  borne  on  the  check-list,  and  all 
checked  hy  the  ward  officers,  as  aforesaid,  who  make  oath  that  their 
ballots  bore  the  name  of  j'our  petitioner,  as  representative  to  the 
general  court,  being  39  votes  in  excess  of  the  number  given  him 
bj'  the  ward  officers,  in  their  return. 

"  The  aggregate  vote  of  the  ward,  for  representative,  as  aforesaid, 
full}'  equalling  the  names  checked  as  having  voted,  these  39  votes, 
of  which  3'our  petitioner  has  been  wrongfully  deprived,  should  not 
only  be  added  to  his  total,  but  taken  from  the  number  given  to  the 
sitting  member,  resulting  in  the  election  of  your  petitioner  b}'  a 
majority  of  64  votes. 

"•  Your  petitioner  proposes  to  show,  b}'  the  magistrates  who  ad- 
ministered the  oaths,  that  the  deponents  are  the  same  persons 
whose  names  are  checked  on  said  list,  as  having  voted. 

"  Your  petitioner  further  proposes  to  show,  that  all  of  said  ward 
officers  were  of  one  party,  and,  during  the  election,  were  conspicuous 
in  displa3ing  partisan  feeling  and  bias ;  that  the  room  occupied  bj' 
the  said  ward  officers,  in  the  custody  and  counting  of  the  votes,  was 
separate  and  apart  from  the  ward  room  ;  that  the  ballots  were  re- 
moved from  the  box,  entirely  out  of  sight  of  the  voters  ;  that  the 
room,  in  which  they  were  kept  and  assorted,  was  made  the  deposi- 
tory of  piles  of  umised  democratic  tickets,  which  were,  bj'  said 
officers,  from  time  to  time,  passed  out  over  the  ballot  box,  to  their 
part}'  vote  distributors  ;  that  the  ward  officers  refused  a  request  to 
permit  the  police  officers,  on  duty  in  the  ward  room,  or  any  person 
of  the  opposite  part}',  to  be  stationed  within  the  room,  where  they 
could  see  the  ballots  while  being  counted ;  that  the  warden,  and 
others  of  the  ward  officers,  while  acting  as  such,  had  several  bets 
of  money  upon  the  result  of  the  then  pending  election. 

"  With  the  submission  of  these  depositions,  and  the  other  evi- 
dence, all  of  which  your  petitioner  believes  to  be  strictly  and  truly 
in  accordance  with  the  fact,  he  desires  that  your  committee  should 
summon  any  of  the  deponents,  concerning  the  truth  of  whose  de- 
position tiie  sitting  member  may  entertain  doubt,  to  such  numbers 
as  may  seem  reasonable  to  your  committee,  and,  if  by  3'ou  consid- 
ered possible,  or  even  practicable, —  either  as  to  expense  in  sum- 
moning and  paying,  or  time  in  examining, —  to  include  the  entire 
855  or  309  witnesses. 


186  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

"  Your  petitioner,  in  the  interest  of  a  fair  vote  and  pure  ballot, 
will  patiently  attend  and  aid  the  committee  in  the  investigation. 

"  These  fiicts,  proven  b}-  whichever  form  of  evidence  or  procedure 
your  eoraniittee  deem  to  direct,  establish  conclusively,  a  degree  of 
fraud,  error,  or  gross  negligence,  rendering  it  impossible  to  deter- 
mine its  further  extent,  or  amount,  and  demanding  that  the  vote  of 
this  ward  should  be  thrown  out  of  the  count,  and  the  election  deter- 
mined by  the  returns  from  the  remainder  of  the  district,  upon  which 
rests  no  taint  of  dishonesty,  or  uncertainty,  thereby  electing  3'our 
petitioner  by  299  majority." 

At  the  first  hearing  of  your  committee  upon  the  petition  of 
Alfred  J.  P'rcuch,  the  counsel  for  the  petitioner  presented  309 
atlidavits,  a  coj)}'  of  one  of  which  is  as  follows  :  — 

"Commonwealth  of  Massachusetts. 
"Essex,  ss.  T,  Alfred  Ash,  a  legal  voter  in  ward  4,  of  the  city  of 
Lawrence,  and  Commonwealth  of  Massachusetts,  certify  that,  on  the  oth 
day  of  November,  a.d.  1872,  I  deposited  in  the  ballot  box,  in  said  ward, 
a  ballot  bearing  the  names  of  all  the  republican  candidates  for  presi- 
dential electors,  and  also  the  name  of  Alfred  J.  French,  for  representa- 
tive to  the  general  court,  from  Essex  District,  No.  3.      Alfred  Ash." 

"Essex,  ss.  Lawrence,  Dec.  30,  1872.  Then  personally  appeared 
the  aforesaid  Alfred  Ash,  and  made  oath,  that  the  foregoing  statement, 
by  hira  subscribed,  is  true.     Before  me, 

"  A.  V.  Bugbee,  Justice  of  the  Peace:'' 

And  requested  that  j'our  committee  present  the  affidavits,  with  a 
statement  of  the  case,  to  the  house  of  representatives,  and  let  them 
decide  the  matter,  should  the  committee  care  not  to  assume  the 
responsibility  of  judging  upon  them,  it  being  the  first  case  of  an 
election  contested  under  similar  circumstances,  so  far  as  they  have 
any  knowledge,  in  this  Commonwealth. 

Your  committee  were  aware  of  the  dangerous  precedent  it  might 
establish,  should  a  member  of  the  house  of  representatives  be  un- 
seated by  adidavits,  without  evidence  of  fraud  on  the  part  of  the 
ward  officers  conducting  any  election,  and  they  decided  that  it  was 
competent  for  them  to  judge  of  what  weight  they  might  have,  in 
connection  with  evidence  that  might  be  introduced  to  establish 
fraud,  and  that  they  would  take  the  responsibility  of  deciding  the 
case,  and,  if  their  judgment  should  prove  false,  the  house  of  repre- 
sentatives, ill  its  wisdom,  could  reverse  their  decision.* 

•  [NoTK  I.Y  THK  Ei.vroKs.  It  was  settled  in  Congress,  as  early  as  1805,  that,  in 
a  hcannK  upon  the  controverted  election  of  a  representative,  the  committee  would 
not  consider  affidavits  which  were  wholly  ex  parte,  and  taken  without  proper  notice 
to  the  opposmg  party  as   evidence.    ISpaulding  v.  Mead,  Clark  &  Hall,  Congres- 


FRENCH   V.    BACON.       HOUSE,    1873. 


187 


From  the  records  of  the  citj'  clerk  of  Lawrence,  the  returns  of 
votes,  thrown  in  the  several  wards  of  the  city  of  Lawrence,  on  the 
5th  day  of  November,  1872,  for  representative  to  the  general 
court,  show  that  in 


«               WAKDS. 

1. 

2. 

3. 

4. 

5. 

6.       Total. 

Alfred  J.  French  had 
The  vote  in  Methuen  was 

Recount  by  the  aldermen  of 
Lawrence,  Nov.  7, 

398 

399 
1 

269 
283 

390 
390 

282 
283 

271 
271 

583 
584 

1 

325 

323 

2 

240 
241 

176 
176 

139 

138 

1,842 
321 

2,163 

Gained,    .... 
Lost,         .... 

Horace  C.  Bacon  had     ,        r 

Recount,  Nov.  7,     . 
The  vote  in  Methuen,     . 

363 
364 

1 

345 

344 

1 

1,939 

1,954 
223 

2,177 

Gained,    .... 
Lost,        .... 

14 

1 

1 

1 

The  evidence,  as  it  appeared  to  your  committee,  was  substan- 
tiall}-  as  follows  :  — 


That  the  ward  room  of  ward  4  of  the  city  of  Lawrence,  used 
at  the  last  state  election,  was  a  room  having  folding  doors,  by 
means  of  which  the  said  room  could  be  made  into  two  rooms,  the 
one  being  nearly  twice  as  large  as  the  other ;  that  a  table  four  feet 
eight  inches  wide  was  placed  in  said  room,  and  the  folding  doors 
drawn  up  to  the  table  on  each  side,  thus  making  of  the  larger 
room,  above  described,  a  ward  room  separate  from  the  audience 
room  in  front  of  the  said  table  ;  that  behind  this  table  sat  the 
ward  officer  who  held  the  ballot  box,  and  in  front  of  it  was  a  rail, 
between  which  and  the  table  the  voters  passed,  to  deposit  their 

sional  Election  Cases,  157.  The  rule  was  reaffirmed,  in  1868,  in  Hogan  v.  nie,  2 
Bartlett  Cong.  Election  Cases,  281,  287,  and  in  1878,  in  Wiggintoti  v.  Pachedo,  1 
Ellsworth  Cong.  Election  Cases,  5,  8.  In  the  New  Marlborough  case,  Mass.  Election 
Cases,  Cashing,  S.  &  J.  323,  the  committee  of  the  house  ruled  that  depositions  are 
not  admissible  in  evidence,  to  invalidate  an  election,  unless  the  member,  whose  right 
is  in  question,  has  been  notified  of  the  intention  to  take  them,  or  was  present  at  the 
taking.] 


188  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

ballots  ;  that  behind  the  table  upon  which  was  the  ballot  box,  wag 
anollii'i-  table,  at  which  sat  the  other  election  officers,  and  upon 
which  the  ballots  were  counted  ;  that  the  warden  did  not  empty 
the  ballot  box  till  about  half  an  hour  before  the  i)olls  closed,  and 
then  he  assisted  in  counting  ballots  ;  that  no  person,  except  the 
ward  officjrs  and  the  janitor  of  the  building,  was  in  the  room  occu- 
pied by  said  ward  officers,  during  the  day,  and  no  person  applied 
for  admission  ;  that  two  police  officers,  by  order  of  the  city  marshal, 
were  stationed  in  the  audience  room,  to  preserve  order,  and  they 
were  there  all  day,  except  at  noon,  when  they  were  away  half  an 
hour  for  dinner ;  that,  after  the  polls  were  opened  in  the  morning, 
democratic  ballots  were  passed  out  of  the  ward  room,  over  the 
ballot  box,  to  ballot  distributors,  it  having  been  a  custom,  in  that 
ward,  to  keep  ballots  in  the  closet,  in  that  part  of  the  room  occupied 
by  the  ward  officers  ;  that  "  somewhere,  sometime,  some  one  had 
bet  that  Grant  would  carry  Lawrence,",  and  the  warcjen,  who  pre- 
sided, had  "bet  that  he  wouldn't ; "  that  republican  ballots  were 
distributed,  with  "Bacon  pasters"  over  the  name  of  one  of  the 
republican  candidates  for  representative,  and  such  ballots  were 
cast,  in  one  of  the  wards  of  the  city  ;  that  most  of  the  affidavits 
were  taken  nearly  two  months  after  the  election. 

One  of  the  magistrates,  before  whom  the  affidavits  were  taken, 
said  that  out  of  the  125  that  he  thought  made  oath  to  him,  he 
knew  tlie  greater  portion  of  them.  Another  magistrate  said  that 
of  the  150  that  made  oath  to  him,  he  recognized  100  or  125  as 
belonjiins  to  ward  4. 

That,  of  the  three  other  witnesses,  that  were  examined  from  this 
ward  4,  whose  affidavits  were  shown  to  them,  one  Daniel  Donovan, 
on  cross-examination,  said  "  he  did  not  recollect  whether  the  ticket 
that  he  voted  had  the  name  of  Alfred  J.  French  upon  it." 

The  committee  were  requested  to  summon  and  examine  persons 
who  voted  in  ward  4  at  the  last  state  election.  They  could  foresee 
some  of  the  difficulties  that  might  arise  from  the  examination  of 
so  many  witnesses,  but,  had  the  discrepancy  been  greater,  your 
committee  felt  that  they  could  have  been  justified  in  the  expense 
and  time  which  it  would  necessarily  involve  ;  but,  under  the  cir- 
cumstances of  this  case,  they  declined  to  do  so. 

The  committee  were  of  the  opinion  that  no  evidence  of  fraud 
had  been  proved,  but  that  there  were  irregularities  in  the  ward 
room,  and  tiiat  the  contestant,  Mr.  French,  did  have  suspicions 
that  there  had  been  fraud,  and  that  he  had  been  wronged  ;  but, 
inasmuch  as  it  would  be  a  dangerous  precedent  to  establish,  to  let 
the  affidavits  of  persons  (to  a  certain  limit,  at  least)  decide  who 


AUSTIN   V.    SWEET.      HOUSE,    1873.  189 

was  entitled  to  a  seat  in  the  house  of  representatives,  in  the 
absence  of  an}-  evidence  of  fraud  on  the  part  of  ward  oflicers,  3'our 
committee  feel  that  the}'  could  report  in  no  other  wa}-,  than  that 
they  recommend  that  the  sitting  member,  Horace  C.  Bacon,  is 
entitled  to  his  seat. 

[The  report  of  the  committee  was  accepted.    H.  J.,  1873,  p.  54.] 


Albert  A.  Austin  v.  Andrew  H.  Sweet. 

House  Document,  No.  48.     February  4,  1873.     Report  by  E.  L.  Bigelow, 

Chairman. 

Becount  of  Votes  refused.  The  mere  fact  that  the  sitting  member  was  given,  by  the 
returns  of  votes,  only  seven  plurality  over  the  petitioner,  and  that  the  petitioner 
claims  that  a  recount  of  the  votes  would  show  a  plurality  in  his  favor,  will  not 
justify  a  recount  bj'  the  house  of  representatives. 

Jlule  in  Burt  v.  Babbitt,  ante,  p.  174,  reatHrmed. 

The  Committee  on  Elections,  to  whom  was  referred  the  petiiion 
of  Albert  A.  Austin  of  Norton,  asking  for  a  recount  of  the  votes 
thrown  for  representative,  in  the  second  Bristol  district,  submit  the 
following  report :  That  it  appears,  from  evidence  before  the  com- 
mittee, that  the  vote  for  representative,  in  the  towns  of  Norton  and 
Mansfield,  comprising  the  second  Bristol  representative  district, 
was  as  follows  :  — 

Town  of  Norton,  for  Andrew  H.  Sweet  of  Norton,  .        .     161 
Town  (if  Mansfield,  for  Andrew  H.  Sweet  of  Norton,       .     155 

Total  for  Sweet, 316 

Town  of  Norton,  for  Albert  A.  Austin  of  Norton,     .        .      97 
Town  of  Mansfield,  for  Albert  A.  Austin  of  Norton,         .     212 

Total  for  Austin, 309 

Thus  showing  that,  by  the  count,  as  made  and  returned  b}'  the 
selectmen  of  Norton  and  Mansfield,  Andrew  H.  Sweet  of  Norton, 
the  sitting  member,  was  elected  by  a  plurality  of  seven  votes. 

The  petition  of  the  contestant  reads  as  follows  :  — 

"  To  the  House  of  Representatives  of  the  Commomoealth  of  Massachusetts. 

"  Albert  A.  Austin  of  Norton,  in  the  county  of  Bristol,  respectfully 
represents,  that  he  claims  an  election  as  representative  in  general  court 
in  place  of  Andrew  H.  Sweet,  Esq.,  who  now  represents  the  second  dis- 


190  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

trict  in  the  county  of  Bristol,  in  your  body.  That,  within  sixty  days  after 
the  eli'Plion,  held  November  5th,  1872,  he  served  a  notice  on  the  clerks 
of  the  towns  of  Norton  and  Mansfield,  respectively,  claiming  an  election. 
And  he  now  prays,  that  your  body  will  order  a  recount  of  the  ballots,  cast 
at  said  election,  for  representative  in  general  court,  he  claiming  that 
such  recount  will  show  a  majority  in  his  fiivor,  and  that  the  certificate 
of  election  should  be  issued  to  your  petitioner. 

Albert  A.  Austin." 

The  committee  have  been  governed  in  their  decision,  in  this 
case,  b}-  a  rule  adopted  by  a  former  committee  on  elections,  which 
was  endorsed  by  the  house  of  representatives,  as  a  precedent 
to  govern  future  committees  on  elections,  in  similar  cases,  which 
is  this  :  That,  in  the  absence  of  an}^  proof  or  evidence  of  fraud  in 
the  acts  of  the  selectmen,  or  of  illegality'  in  the  manner  of  calling, 
holding  or  conducting  the  meeting,  at  which  the  election  is  held,  or 
in  the  manner  of  ascertaining  the  election  of  representatives,  unless 
the  petitioner  shows  a  reasonable  ground  for  supposing  an  error  in 
the  count,  as  made  and  returned  by  the  selectmen,  other  than  the 
mere  fact  of  there  being  but  a  few  votes  between  the  number  of 
votes  thrown  for  the  contestant  and  the  sitting  member,  the  com- 
mittee will  not  recount  the  ballots  that  may  be  produced. 

No  evidence  having  been  offered,  before  3'our  committee,  in  sup- 
port of  the  petitioner's  claim,  other  than  the  fact  that  there  is  but 
seven  votes'  difference  in  the  number  of  ballots  cast  for  the  sitting 
member  and  the  petitioner,  the  committee  therefore  recommend, 
that  the  sitting  member,  Andrew  H.  Sweet,  is  entitled  to  his  seat. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1873, 
p.  111.] 


CLARK   V.    SALMON.       SENATE,    1874.  191 


SENATE— 1874. 

Special  Committee  on  Beturn  of  Votes  for  Senators  —  Hon.  Jonathan  A. 
Lane,  Hou.  Brooks  T.  Batcheli.er,  Hon.  Prentiss  C.  Baird,  Hon. 
Thomas  Ingalls  and  Hon.  Walter  N.  Mason. 


Jeremiah  Clark  v.  William  F.  Salmon. 

Senate  Document,  No.  2.     January  12, 1874.     Report  by  Mr.  Lane,  Chair- 
man. 

Defect  in  Name  on  Ballot.  A  ballot,  in  which  the  name  of  the  regular  candidate 
for  senator  was  covered  by  a  paster,  loosely  attached,  bearing  the  name  of  Jeremiah 
Cla,  the  end  of  the  paster,  evidently  containing  the  last  two  letters  of  the  name 
Clark,  having  been  torn  off,  should  be  counted  for  Jeremiah  Clark,  who  was  the 
regular  candidate  of  the  opposing  party  for  that  ofSce. 

Faihire  to  erase  Name.  "Where,  on  ballots  for  State  officers,  containing  the  printed 
name  of  Jeremiah  Clark,  for  senator,  there  was  written,  in  pencil,  upon  the  margin,  at 
the  bottom  of  the  ballot,  "  W.  F.  Salmon,  senator,"  the  name  of  Clark  not  being 
erased;  —  or  where  a  strip  was  securely  attached,  by  pins,  just  below  the  name  of 
Clark,  on  which  was  printed,  for  senator,  etc.,  William  F.  Salmon,  such  strip  not 
covering  the  name  of  Clark,  so  that,  on  each  ballot,  the  names  of  both  candidates  for 
the  office  appear;  — the  votes  cannot  be  counted  for  either  candidate. 

Same.  Where,  on  a  ballot  for  State  officers,  upon  which  the  name  of  Salmon  was 
printed,  as  the  regular  democratic  candidate  for  senator,  the  name  of  Clark,  who  was 
the  regular  republican  candidate,  was  pasted  over  the  name  of  the  candidate  for 
some  other  office  than  that  of  senator,  leaving  the  name  of  Salmon,  for  senator,  unim- 
paired,—  there  being  on  the  paster  no  designation  of  the  office  for  which  Clark  was 
named,  —  the  vote  cannot  be  counted  as  a  vote  for  Clark,  for  senator,  but  will  be 
counted  for  Salmon. 

Joshua  N.  Marshall  for  petitioner. 

George  F.  Richardson  for  sitting  member. 

The  Special  Committee,  on  the  returns  of  votes  for  senators,  to 
which  was  committed  the  petition  of  Jeremiah  Clark  of  Lowell, 
asking  for  a  recount  of  votes  for  senator,  in  the  seventh  Middlesex 
senatorial  district,  with  power  to  send  for  persons  and  papers, 
report:  That  they  have  attended  to  this  dut^',  without  delay,  the 
clerks  of  the  towns  of  Dracut  and  Chelmsford,  and  of  the  cit}'  of 
Lowell,  being  summoned  to  appear,  with  all  the  ballots  cast  for  sen- 
ator, in  that  district,  at  the  last  election,  and  with  such  other  papers 
as  might  be  of  aid  to  us  ;  that  said  clerks  duly  appeared,  and  were 
duly  sworn  ;  that  the  ballots,  which  thej'  brought  with  them,  had 
been  duly  sealed,  and  kept  according  to  the  requirement  of  the  stat- 


192 


MASSACHUSETTS   ELECTION    CASES 1853-1885. 


ute,  and  were  all  the  ballots  cast  at  said  election,  for  senator,  in 
said  seventh  Middlesex  district.  Whereupon  said  clerks  retired, 
and  we  proceeded,  four  members  of  the  committee  being  present, 
to  a  careful  count  and  examination  of  all  of  said  votes,  every  vote 
parsing  through  the  hands  of  every  member  of  the  committee 
present. 

In  the  process  of  said  counting  and  examination,  all  votes  that 
were  of  a  doubtful  character,  —  concerning  which  your  committee 
felt  that  a  deliberate  reconsideration  or  reflection  might  be  neces- 
sary, —  were  carefuU}'  put  aside,  into  envelopes,  and  the  locality 
where  Ihey  were  cast  marked  upon  them.  Of  such  votes,  they 
found,  (in  the  process  of  counting  all)  five  only — two  from  ward  6, 
in  Lowell,  and  three  from  ward  1.  These  were  carefullj^  set 
aside,  and,  at  the  close  of  the  recount,  taken  into  the  possession  of 
the  chairman  of  j^our  committee. 

The  result  of  our  recount,  exclusive  of  the  five  votes,  was 
as  follows  :  — 


w 

Clakk. 

Salmon. 

Scattering. 

Town  of  Dracut, 

of  Chelmsford,  .... 
City  of  Lowell,  ward  1, 

"     2,       .        .        . 
"     3,       .        .        . 

' 4,       .        .        . 

"    5,       .        .        . 
"     6,       .        .        . 

140 
224 
191 
270 
329 
371 
412 
217 

81 
119 
229 
300 
464 
383 
41G 
162 

1 

1 

2,154 

2,154 

2 

This  result  is  so  surprising,  that  we  think  it  proper  here  to  say, 
that  we  did  not  put  these  figures  in  column,  to  determine  their 
aggregate,  until  we  had  completed  our  recount  and  examination. 

Upon  the  decision,  then,  to  whom  we  give  the  five  votes,  previ- 
ously  referred  to,  depends  the  result  of  this  election.  We  there- 
fore refer  to  them  in  detail. 

Vote  number  one  wj^s  a  democratic  ticket,  on  which  the  name  of 
William  F.  Salmon,  senator,  seventh  Middlesex  district,  was  cov- 


CLARK   V.    SALMON.       SENATE,    1874.  193 

ered  by  a  paster,  looselj*  attached,  bearing  the  name  Jeremiah  Cla, 
a  portion  of  the  end  of  the  paster  having  been  evidently  torn  off, 
taking  the  last  two  letters  of  the  name  Clark.  This  vote,  which 
probabl}',  b}'  legal  technicality,  might  be  thrown  out,  3'our  commit- 
tee, without  hesitation,  give  to  Jeremiah  Clark,  believing  it  to  be 
intended  for  him,  without  doubt,  but  somewhat  damaged  in  the 
handling. 

Numbers  two  and  three,  of  these  equivocal  votes,  were  so  alike 
in  character,  that  we  speak  of  them  and  class  them  together. 

They  were  republican  tickets,  having  in  bold  letters,  on  the 
centre,  For  senator,  seventh  district,  Jeremiah  Clark  of  Lowell. 
One  of  these  votes  had  written  upon  the  margin,  at  the  bottom  of 
the  ballot,  in  pencil,  W.  F.  Salmon,  senator.  The  other  had,  se- 
curely attached  by  pins,  just  below  the  name  of  Clark,  a  strip  cut 
from  a  democratic  ticket,  piinted.  For  senator,  seventh  Middlesex 
district,  William  F,  Salmon  of  Lowell.  These  votes  indicate  a 
purpose,  on  the  part  of  the  voters,  to  give  their  suffrages  to  Salmon, 
for  senator,  but,  omitting  to  erase  or  cover  the  names  of  the  other 
senatorial  candidate,  the  names  of  both  candidates,  for  senator, 
appear  on  each  ballot. 

Your  committee  decide  that,  although  it  may  seem  unfair  to 
Salmon,  on  principles  of  equit}',  3'et,  as  a  matter  of  rule  and  duty, 
both  should  be  thrown  out. 

We  reach,  then,  the  two  remaining  ballots,  numbers  four  and 
five,  which  we  also  class  together.  The}'  are  both  democratic  tick- 
ets, and  on  them  the  name  of  William  F.  Salmon,  for  senator, 
seventh  Middlesex  district,  is  unimpaired  and  unimpinged  ;  but,  on 
one  of  them,  the  name  of  Jeremiah  Clark  is  pasted  over  that  of 
John  C.  Blood,  representative,  and  doubtless  depriving  him  of  one 
vote  ;  on  the  other,  the  name  of  Jeremiah  Clark  is  pasted  at  the  top 
of  the  ballot,  over  the  name  of  Benjamin  F.  Mills,  secretary  of 
state,  and  partly  covering  that  of  Nathan  Clark,  treasurer  and 
receiver-general.  The  designation  of  senator,  seventh  Middlesex  dis- 
Jrict,  does  not  appear  on  either  of  these  pasters. 

It  may  be  imagined,  and  was  thus  argued  before  your  committee, 
that  these  pasters  were  designed  to  be  senatorial  votes  for  Clark. 
Your  committee  cannot  allow  themselves  to  go  so  far,  in  aitemiMug 
to  divine  the  intent  of  blunderheads  at  the  polls,  as  to  thus  judge 
in  this  affair. 

We  believe  that,  in  good  sense  and  good  law,  these  two  votes 
should  be  credited  to  William  F.  Salmon  of  Lowell,  senator. 

Thus,  the  five  doubtful  votes  are  disposed  of,  hy  your  committee  : 
one  given  to  Clark,  two  thrown  out,  two  given  to  Salmon  ;  and,  by 
the  united  judgment  of  the  acting  members  of  this  committee,  Hon. 


194  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

"Willliam  F.  Salmon  of  Lowell  is  confirmed  in  his  seat  by  a  plu- 
rality of  one  vote.* 

•  [Note  by  the  Editors.    Construction  of  defective  Ballot.    In  an  election  con- 
trovcr.<y  the  ballot  must  be  construed  by  the  same  rule  that  governs  courts  in  the 
construction  of  written  contracts  and  wills.     The  rule  is  stated  by  Chief  Justice 
Shaw:  "The  maxim  is,  to  give  some  eflfect  to  the  acts  of  parties,  if  possible,  ut  res 
maijis  valeat  quam  pereat ;  and  in  construing  all  instruments,  and  especially  those 
which  are  informal,  illiterate,  hastily  and  unskilfully  drawn,  the  intent  of  the  par- 
tics,  if  possible,  is  to  be  ascertained,  without  regard  to  technical  rules;  words  are  to 
be  construed  in  the  manner  in  which  the  parties  understood  them ;  resort  is  to  be 
had  to  every  clause  and  word  in  the  instrument,  for  the  purpose  of  ascertaining  that 
understanding  and  intent;  and  the  intent  of  the  parties  when  thus  ascertained,  is  to 
be  the  governing  rule  for  carrying  the  contract  into  effect."    Atwood  v.  Cobb,  16  Pick. 
227,  229.    "  We  are  to  be  governed,  not  by  technical  and  artificial  rules,  but  by  the 
true  intention  of  the  parties,  as  expressed  by  the  language  of  the  contract.    This  rule 
of  construction  is  well  established  by  all  the  modern  cases."     Wilde,  J.,  in  Hoivland 
V.  Leach,  11  Pick'.  151, 1.51.    The  language  and  form  of  a  ballot  are  to  be  construed, 
if  possible,  to  give  effect  to  the  voter's  intention,  if  that  intention  can  be  ascertained 
from  the  ballot  itself,  in  the  light  of  all  the  circumstances  surrounding  the  election. 
Informalities  or  technical  inaccuracies  in  the  expression  by  the  voter  of  his  inten- 
tion, will  not  invalidate  his  vote  if  that  intention  is  sufficiently  shown  by  his  ballot. 
As  stated  by  Judge  Cooley:    "Every  ballot  should  be  complete  in  itself,  and  ought 
not  to  require  extrinsic  evidence  to  enable  the  election  officer  to  determine  the  voter's 
intention.    Perfect  certainty,  however,  is  not  required  in  these  cases.    It  is  sufficient 
if  an  examination  leaves  no  reasonable  doubt  upon  the  intention,  and  technical  ac- 
curacy is  never  required  in  any  case.    The  cardinal  rule  is  to  give  effect  to  the  in- 
tention of  the  voter,  whenever  it  is  not  left  in  uncertainty."    Constitutional  Limita- 
tions, 4th  ed.,  pp.  764,  765.     And  see  People  v.  Matteson,  17  111.  169 ;  Hawes  v.  Miller, 
56  Iowa,  395;    CcMell  v.  Loiory,  45  lb.  478;    Slate  v.  Goldthioait,  16  Wis.  146.     But 
this  intention  must  be  ascertained  from  the  ballot  alone,  taken  in  connection  with 
the  circumstances  of  the  election.    "While,  as  stated  in  Wright  v.  Hooper,  and  foot- 
note, ante,  pp.  100-105,  extrinsic  evidence  to  explain  and  apply  an  imperfect  or  in- 
correct ballot  may  be  admissible,  it   can  never  be  received  to  contnulict  what  is 
writicn   upon  the  face  of  the  ballot.    McCrary  Elections,  ^  407.    People  v.  ^ea- 
mans,  8  Cowen  (N.  Y.),  409.     Where,  then,  the  intention    is   to   be   ascertained 
wholly  from  an  inspection  of  the  ballot,  it  is  a  question  of  law,  like  the  construction 
of  a  written  contract.    People  v.  McManiis,  34  Barb.  (N.  Y.),  620. 

Erasure  on  Ballot.  Where  an  erasure  by  mark  or  pasting  is  found  upon  a  ballot, 
even  if  the  name  on  the  ballot  is  not  entirely  obliterated,  the  presumption  is  that  the 
voter  intended  "  to  scratch  "the  name  upon  which  he  has  made  the  erasure,  and 
that  intention,  if  apparent,  will  be  given  effect.  "  Where  a  pen  or  pencil  mark  is 
drawn  over  a  name,  which  has  been  printed  on  a  ballot,  it  will  be  presumed  that 
an  erasure  of  the  name  was  intended,  although  it  be  still  legible,  unless  the  con- 
trary is  shown.  It  is  not  necessary  to  obliterate  the  name  entirely."  McCrary  Elec- 
tions ^411.  In  Clark  v.  Robmson,88  111.  498,  William  E.  Robinson  and  E.  E. 
Chirk  were  the  two  candidates  for  the  office  of  clerk  of  the  circuit  court.  Upon  a 
controversy  over  the  election,  votes  on  the  Clark  ballots  for"  W.  E.  Robso"  md 
"  W.  E.  Robera  "  were  counted  by  the  court  for  William  E.  Robinson ;  and  where 
the  name  of  E.  E.  Clark  on  the  printed  ballot  was  erased,  and  the  word  "  Robin" 
written  on  the  margin  to  the  left  of  the  words,  "  for  Circuit  Clerk,"  with  a  light 
mark  at  the  end  of  the  name,  the  vote  was  also  counted  for  Robinson.  The  ques- 
tion whether  a  name  on  a  l)al!ot  has  been  erased  is  a  question  of  fact  to  be  deter- 
mined by  inspection  of  the  ballot.     Coffey  v.  Edmonds,  58  Cal.  521. 

Omission  to  erase  printed  Name  on  Ballot.  The  finding,  by  the  committee  in  the 
above  ciise,  that  where  the  name  of  the  opposing  candidate  is  written  upon  the 
ballot,  but  tlie  printed  name  of  his  opponent  is  left  unerased,  the  vote  cannot  be 


CLARK   V.    SALMON.       SENATE,    1874.  195 

Your  committee  feel  bound  to  add  that,  upon  returning  to  their 
room,  this  morning,  for  a  hearing,  they  found  upon  their  table  a 
paster,  —  William  F.  Salmon,  senator.     Whether  this  was  a  vote 

counted  for  cither,  is  opposed  to  the  great  weight  of  authority.  In  a  similar  case, 
People  V.  Saxton,  22  N.  Y.  309,  the  court  held  that,  "  writing  a  name  upon  a  ballot, 
in  connection  with  the  title  of  an  office,  is  such  a  designation  of  the  name  for  that 
office,  as  to  satisfy  the  statute,  although  the  voter  omits  to  strike  out  a  name  printed 
upon  it,  in  connection  with  the  same  office.  The  writing  is  to  prevail,  as  the  highest 
evidence  of  his  inten  tion.  The  judge  ought  to  have  charged  the  jur}%  as  a  matter  ot 
law,  that  they  were  bound  to  find  the  fact,  accordingly,  from  the  face  of  the  ballot 
itself."  And  see,  to  the  same  effect  People  v.  Love,  63  Barb.  (N.  Y.)  535;  Clark  v. 
Robinson,  88  111.  498.  Mr.  McCrary  follows  these  cases,  saying:  "  If  a  voter  has 
written  upon  his  ballot  the  name  of  a  particular  person,  in  connection  with  the  title 
of  an  office,  and  omits  to  strike  out  the  name  of  another  person  printed  upon  it,  in 
connection  with  the  same  office,  the  writing  must  prevail,  and  the  vote  must  be 
counted  for  the  person  whose  name  is  written.  This  is  upon  the  ground,  that  the 
writing  is  the  highest  evidence  of  the  voter's  intention.  In  such  a  case,  the 
voter's  intention  can  be  clearly  ascertained  from  the  face  of  the  ballot ;  there  is 
no  ambiguity,  and,  therefore,  evidence  aliunde  is  not  admissible  to  explain  it, 
and  the  court  must,  in  such  a  case,  find,  as  a  matter  of  law,  that  the  writing  on  the 
fiice  of  the  ballot,  prevails  over  the  printing."  McCrary  Elections,  ^^  408, 409.  See, 
also,  Cooley,  Con.  Lim.,  4th  ed.,  p.  765.  It  has,  however,  been  held,  under  statutes 
providing  that  if  a  ballot  contains  more  than  one  name  for  a  single  office,  it 
shall  be  void  as  to  all  names  designated  for  that  office,  that  a  ballot  containing  a 
written  name,  without  erasure  of  the  printed  name  of  another  person  fur  the 
same  office,  it  cannot  be  counted  for  either.  People  v.  Cicotte,  16  Mich.  283;  Neio- 
ton  V.  Newell,  26  Minn.  529. 

Pasting  Name  in  lorong  Place  on  Ballot.  Where  the  slip  or  paster  containing 
the  substituted  name  is  pasted  over  the  name  of  the  opposing  candidate,  so  as  only 
partially  to  obliterate  it,  the  vote  will  be  counted  for  the  substituted  nauK',  where 
the  intention  to  make  the  substitution  is  apparent.  Keeler  v.  Robertson,  27  Mich  116. 
The  question  here  is  one  of  fact,  to  be  judged  from  the  ballots,  and  the  circum- 
stances of  the  election.  This  was  settled  in  People  v.  Love,  63  Barb.  (N.  Y.),  535, 
where  pasters  for  supervisor  were  so  fastened  on  printed  ballots,  as  wholly  or  par- 
tially tu  cover  the  designation  of  the  office  contained  on  the  ballot  next  under  that 
of  supervisor,—  that  of  town  clerk, —  so  that  with  the  paster  on  it,  the  ballot  appa- 
lently  contained  two  names  for  supervisor,  instead  of  one  for  supervisor  and  one  fur 
clerk.  The  court  held  that  such  ballots  should  be  counted  for  the  name  on  the 
paster  for  supervisor,  on  the  ground  that,  "  The  acts  of  the  voter  are  to  receive  a 
reasonable  construction,  in  view  of  the  surrounding  circumstances.  The  plating  of 
a  paster  containing  one  name  over  another  name  indicates  an  intention  to  substitute 
one  name  for  another.  If  it  be  placed  over  another  name,  which  is  under  the  title 
of  an  office,  it  indicates  an  intention  to  substitute,  for  that  office,  the  name  upon  the 
paster.  If  it  be  done  in  such  a  manner  as  to  atford  any  ground  for  doubt,  whether 
the  voter  mtended  to  designate  two  persons  for  the  same  office,  we  think  that  doubt 
may  be  safely  left  to  be  solved  by  a  jury,  in  view  of  all  the  facts,  the  appearance  of 
the  ballot,  and  the  surrounding  circumstances." 

Votes  u'ith  no  Designation  of  Office  cannot  be  counted.  The  committee  in  the 
above  report  are  sustained  by  authority  in  holding  that  a  name  written  or  pasted  on 
a  ballot,  upon  which  more  than  one  office  is  to  be  voted  for,  without  a  dcsignaton 
of  the  office  for  which  the  name  so  placed  is  voted,  cannot  be  counted.  In  State  v. 
Griffrey,  o  Nebraska,  161,  the  court  say :  "  No  office  whatever  is  designated  on  the 
face  of  these  ballots,  and  the  proposition  will  hardly  be  questioned,  that  some  desig- 
nation of  office  stated  on  the  ballot  is  one  of  the  essential  properties  to  constitute  it  a 
legal  ballot.    Without  some  designation  of  office,  the  ballot  would  be  meaningless, 


196  MASSACHUSETTS   ELECTION    CASES 1853-1885. 

of  itself,  which  escaped  our  notice,  or  a  paster  which  had  fallen  off, 
having  been  already  counted,  your  committee  could  not  determine. 
It  does  not  aflfect  the  result. 

[The  report  of  the  committee  was  accepted,  S.  J.,  1874,  p.  24.] 


Thaddeus  Graves  v.  Francis  Edson. 

Senate  Document  No.  5.  January  15,  1874.  Before  special  committee  on 
return  of  votes  for  senators,  before  named ;  report  by  Messrs.  Lane, 
Batchellek,  Baiud,  Ingalls  and  Mason. 

Recount  of  Votes  refused.  The  fact  that  the  votes  in  a  town  were,  in  part  at  least, 
counted  by  only  one  of  the  selectmen,  and  the  coincidence  that,  although  there  were 
a  number  of  split  tickets  in  the  field,  the  vote  for  each  of  the  two  candidates  fur  sena- 
tor was  returned  as  exactly  the  same  as  for  each  of  the  two  candidates  for  governor, 
will  not,  in  the  absence  of  evidence  of  illegality,  fraud,  error,  or  reasonable  ground 
for  supposing  either  of  them  to  exist,  justify  a  recount  of  the  votes  for  senator. 

The  rule  in  Burt  v.  Babbitt,  ante,  p.  174,  affirmed. 

The  Special  Committee  on  the  returns  of  votes  for  senators,  to 
which  was  committed  the  petition  of  Thaddeus  Graves  of  Hatfield, 
contesting  seat  of  Francis  Edson  of  Hadley,  for  Hampshire  sena- 
torial district,  report,  that  the  petitioner,  in  this  case,  desires  a  re- 
count of  votes  throughout  the  district,  for  the  reason  that  he  be- 
lieves the  returns  embody  substantial  errors,  owing  to  mistakes  in 
counting  the  ballots.  He  also  declares  his  conviction,  that  votes 
were  cast  bj'  minors,  and  others  not  entitled  to  vote,  sufficient  to 
change  the  result. 

Ui)on  the  hearing  given  Mr.  Graves,  the  charge  of  illegal 
voting  was  abandoned  by  him,  and  he  rested  his  case  entirely  on 
these  grounds : 


D" 


and  it  would  he  impossible  for  the  officers  of  the  election  to  determine  for  what  office 
the  persons  named  on  it  were  intended.  But  it  is  not  essential  that  the  ballot 
Hhould,  with  technical  accuracy,  designate  the  office.  This  is  not  an  indispensable 
rcquircuicnt  of  the  law,  and,  therefore,  in  case  the  office  should  be  imperfectly,  or 
in  part,  mistakenly  designated,  then,  under  the  application  of  the  common  sense 
rules,  which  arc  applied  in  other  cases  of  defective  writings,  if  the  proof  of  circum- 
stances surrounding  the  election  will  reasonably  explain  the  ballot,  and  correct  the 
mistake  or  detect,  it  may  be  sustained,  and  effect  given  to  the  intention  of  the  voter. 
But  in  tlic  case  under  consideration,  as  no  office  at  all  is  designated,  there  is  nothing 
to  explain,  and  no  defect  or  mistake  to  correct.."  And  see,  to  the  same  etfect. 
Gushing,  Law  and  Practice  of  Leg.  Assemblies,  §  105.] 


GEAVES    V.    EDSON.       SENATE,    1S74.  197 

That  in  Nortliarnpton,  the  largest  town  in  the  district,  and  where 
he  fell  much  behind  his  ticket,  all  the  parties  who  counted  the 
votes,  were  opposed  to  his  election,  and  the  manner  of  counting 
was  unusual  and  unsafe.  That  in  the  town  of  Easthampton,  there 
was  so  remarkable  a  coincidence  in  the  figures  of  the  returns,  that 
it  demands  an  investigation  by  recount. 

The  petitioner  was  not  prepared  to  prove,  nor  did  he  allege,  any 
illegality  in  either  case  ;  the  unsafe  method  of  counting  in  North- 
ampton, was,  that  the  votes  were,  in  part,  at  least,  counted  by  only 
one  of  the  selectmen ;  and  the  coincidence  in  Easthampton  was, 
that  while  there  were  a  number  of  tickets  in  the  field  supposed  to 
be  playing  at  cross-purposes,  the  returns  show,  that  he  received 
exactly  the  same  number  of  votes  as  the  governor  elect,  while  his 
opponent  received  exactly  the  same  number  as  did  William  Gaston 
for  governor. 

IMr.  Graves  also  put  in  a  petition,  addressed  to  your  committee, 
signed. by  about  125  persons,  praying  for  a  recount  of  votes  in  this 
district  for  the  purpose  of  verifying  the  result. 

Your  committee  forbear  any  comments  on  this  case,  and  beg  to 
refer  the  honorable  senate  to  the  case  of  Burt  v.  Babbitt^  ante, 
p.  174,  where,  in  a  similar  case,  a  committee  of  the  house,  one  of 
whom  is  now  a  member  of  this  body,  reported  and  recommended 
the  following  rule,  which  we  also  commend  to  the  senate  for  their 
consideration. 

The  rule  is  this  :  that,  in  the  absence  of  any  proof  or  evidence 
of  fraud,  in  the  acts  of  the  selectmen,  or  of  illegality  in  the  manner 
of  calling,  holding  or  conducting  the  meeting  at  which  the  election 
is  held,  or  in  the  manner  of  ascertaining  the  election  of  representa- 
tive, unless  the  petitioner  shows  a  reasonable  ground  for  su|)pos- 
ing  an  error  in  the  count  as  made,  and  returned  by  the  selectmen, 
other  than  the  mere  fact  of  there  being  but  a  few  votes  between  the 
number  of  votes  thrown  for  the  contestant  and  the  sitting  member, 
the  committee  will  not  recount  the  ballots  that  may  have  been  pre- 
served. 

As  in  this  case  there  is  no  evidence  of  illegality  or  fraud,  nor 
reasonable  ground  for  supposing  any  to  exist,  or  for  supposing 
any  error  in  the  count,  save  the  fact  that  the  sitting  member  had  a 
small  plurality,  your  committee  do  not  feel  justified  in  ordering 
persons  and  papers  for  a  recount  of  all  the  votes  in  this  district ; 
and,  therefore,  report  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.     S.  J.,  1874,  p.  33.] 


198  MASSACHUSETTS   ELECTION   CASES 1853-1885. 


Thomas  L.  Jenks  v.  Francis  B.  Hayes. 

Senate,  unprintecl.  January  10  and  27,  1874.  Before  special  committee 
ou  return  of  votes  for  seuatoi's,  as  before  named.  Report  by  Jonathan 
A.  Lane,  Chairman. 

Practice.  Specijications  may  be  filed  under  Petition  for  Seat.  It  seems  that  a  claim 
for  a  seat  in  the  senate  should  be  made  by  a  petition,  stating  the  ground  upon  which 
tlie  seat  is  claimed ;  but  where  the  petition  does  not  state  such  ground,  the  petitioner 
may  be  allowed  to  file  specifications  alleging  it. 

Patrick  A.  Collins  for  petitioner. 

In  this  case  the  claim  of  the  petitioner  was  as  follows  :  — 

"  To  the  Honorable  the  Massachusetts  Senate :  The  undesigned  hereby 
claims  to  be  the  duly  elected  senator  from  the  second  SuflFolk  senatorial 
district,  and  contests  the  right  of  Francis  B.  Hayes  to  represent  said  dis- 
trict. Thomas  L.  Jenks. 

"  Boston,  Jan.  7,  1874  " 

The  committee  report  that  said  Junks  does  not,  iu  the  paper  re- 
ferred to  as  a  petition,  and  upon  which  our  action  is  based,  appear 
as  a  petitioner,  but  as  a  claimant,  nor  does  be  declare  the  ground 
upon  which  he  rests  his  claim,  or  set  forth  any  reason  why  Fran- 
cis r>.  Hayes,  who  by  our  report  on  return  of  votes  for  senators  is 
declared  to  be  duly  elected,  is  not  rightfull}'  entitled  to  represent 
said  district.  Your  committee,  therefore,  report  that  said  Thomas 
L.  Jenks  have  leave  to  withdraw. 

[The  report  of  the  committee  was  recommitted,  and  the  com- 
mittee authorized  to  send  for  persons  and  papers.  S.  J.,  1874,  p. 
21.  The  petitioner  then  presented  b^'  his  attorney-,  specifications, 
and  under  them,  the  committee  examined  the  check-list  and  votes 
in  the  wards  of  the  district,  in  which  irregularities  were  claimed,  and 
found  that  no  irregularities  existed.  The  petitioner  informed  the 
committee  that  he  was  satisfied  with  the  investigation,  and  re- 
quested leave  to  withdraw.  The  committee  reported  leave  to  with- 
draw, and  the  report  was   accepted.     S.  J.,  1874,  p.  54.] 


LAY,    PET.      HOUSE,    1874.  1*J9 


HOUSE  — COMMITTEE    ON   E  L  E  C  T  I  ON  S  — 1874. 

Messrs.  Thomas  M.  Judd  of  Lee,  Chairman,  Dexnis  Bonner  of  Boston, 
James  L.  Merritt  of  Scituate,  Sajiuel  P.  Billings  of  Hatfield,  James 
D.  HuRLBUT  of  Bolton,  E.  H.  Seymour  of  Granville,  and  N.  E.  Mollis 
of  Braiutree. 


Thomas   J.    Anderson   v.  John   Tewksbury. 

House  Document,   No.    32.     January  29,  1874.     Report  by  Thomas  M. 

Judd,  Chairman. 

[In  this  case,  the  petitioner  claimed  that  the  sitting  member 
was  not  eligible  to  the  office  of  representative  from  ward  3,  Boston, 
from  which  he  was  elected,  as  he  had  not  been  au  inhabitant  of 
that  ward  for  one  year  next  preceding  the  date  of  his  election,  and 
the  committee,  upon  the  evidence,  so  found,  and  reported  a  resolu- 
tion, declaring  the  seat  vacant.  The  house  accepted  the  report  and 
adopted  the  resolution.  H.  J.,  1874,  p.  77.  Sufficient  facts  are  not 
reported  to  make  the  case  of  value  as  a  precedent.] 


Henry  D.  Lay  et  als.,  Petitioners. 

House  Document,   No.  34.     January  30,  1874.     Report  by  Thomas  M. 

Judd,  Chairman. 

[In  this  case,  the  election  had  been  declared  a  tie,  between  the 
petitioners,  Henry  D.  Lay  and  Charles  M.  Brown,  each  being 
found  by  the  transcripts  of  the  records  of  votes  for  representative 
in  the  district,  to  have  received  the  same  number  of  votes.  A 
new  election  was  then  held,  which  resulted  in  the  election  of  one 


200  ]MASSACIIUSETTS   ELECTION   CASES 1853-1885. 

Moses  Carr,  who  died  before  the  meeting  of  the  legislature.  Mr. 
Lav  and  Mr.  Brown  then  petitioned  for  a  recount  of  the  votes 
cast  for  representative,  at  the  regular  election,  in  which  they  were 
opposing  candidates,  and  at  their  request,  finding  that  the  ballots 
had  been  properly  sealed  up  and  preserved,  the  committee  re- 
counted the  votes,  and  found,  that  instead  of  a  tie  vote,  as  de- 
clared, Mr.  Lay  had  a  plurality  of  three  ;  and,  thereupon,  reported 
that  he  was  entitled  to  the  seat.  The  report  of  the  committee  was 
accepted.  H.  J.,  1874,  p.  80.  And  Mr.  Lay  qualified.  Ih. 
2).  8G.] 


Charles   A.  Perry  v.  Albert   Montague. 

House  Document,  No.  39.  February  4,  1874.  Keport  by  Messrs.  Judd, 
BoxNER,  Merritt,  Seymour  and  Hollis,  — Messrs.  Billings  and 
HuRLBURT  dissenting. 

Election  void  for  Uticertainty.  It  seems  that  in  a  representative  district  com- 
posed of  five  towns,  if  the  election  in  one  of  the  towns  is  void  for  uncertainty,  the 
election  in  the  district  should  be  set  aside. 

Election  void.  What  Irregularities  loill  make.  "Where,  in  such  town,  the  record 
did  not  state  the  whole  number  of  votes  <ri^'en  for  any  officer  voted  for;  where  the 
number  of  votes  recorded  did  not  correspond  with  the  number  of  names  checked  on 
the  voting  list;  where  it  was  uncertain  how  many  of  the  selectmen  participated  in 
countinf?  the  votes;  where  there  was  evidence  from  bystanders  (legal  voters),  who 
overlooked  the  count  that  they  saw  enough  more  votes  cast  for  the  petitioner  than 
were  counted  for  him,  to  change  the  declared  result,  and  verified  the  fact  by  going  to 
the  poll-room  the  morning  after  election  and  finding  the  votes  unsealed,  recounted 
tiiem  ;  where  depositions  of  persons  equal  in  number  to  the  number  of  votes  found 
by  this  recount  to  have  been  cast  for  the  petitioner,  to  the  effect  that  they  voted  for 
the  petitioner,  were  offered  in  evidence;  and  where  the  votes  cast  were  not  preserved 
as  required  by  law, — it  was  held  by  a  majority  of  the  committee,  that  the  election  in 
that  town  was  void,  and,  by  the  house  of  representatives,  that  the  election  in  the 
district  was  void. 

Evidence.  Depositions  may  be  taken  and  used.  It  seems  that,  where  the  peti- 
tioner notified  the  returned  member  of  his  intention  to  contest  the  election,  and  also 
notified  such  member  and  the  selectmen  of  the  town  that  he  intended  to  take  testi- 
mony in  the  same,  at  a  time  and  place  named,  to  prove  fraud  or  mistake  in  the 
record  and  return  of  votes,  and  requested  them  to  be  present  and  examine  the  wit- 
nesses, if  they  desired,  the  depositions  of  witnesses,  so  examined,  although  none  of 
the  parties,  so  notified,  attended,  will  be  received  as  evidence,  with  the  same  effect 
as  though  taken  before  a  commissioner  duly  appointed  by  the  house. 


PEERY   V.    MONTAGUE.      HOUSE,    1874.  201 

Irrcgitlarities  in  conditct  of  Election.  Effect  iipon  the  Election.  Qtmre.  "Where 
the  meeting  for  the  election  was  left  in  charge  of  the  town  clerk  for  twenty  or  thirty- 
minutes,  while  all  the  Selectmen  went  to  dinner,  there  being  doubt  whether,  during 
that  time,  one  person  voted,  and  where  during  most  of  the  meeting,  but  one  of  the 
selectmen  actually  ofillciated,  it  was  questioned,  whether  the  election  in  such  town 
should  not  be  declared  void. 

William  W.  W A.B.n^^  for  petitioner . 
M.  F.  Dickinson,  Jr.  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  committed  the  peti- 
tion of  Charles  A  Perry  of  Shutesburv,  claiming  a  seat  in  the 
house,  as  representative  of  the  second  Franklin  district,  being  the 
seat  now  held  by  Albert  Montague,  have  heard  the  evidence  sub- 
mitted to  them  by  the  petitioner,  and  by  the  sitting  member,  and 
the  arguments  of  counsel  on  behalf  of  each,  and  they  hereby  sub- 
mit their  report. 

The  said  representative  district  consists  of  the  towns  of  Mon- 
tague, Sunderland,  Leverett,  Wendell  and  Shutesbury. 

No  question  was  made,  at  the  hearing,  in  regard  to  the  votes  of 
any  of  the  towns,  except  that  of  Shutesbury.  The  aggregate  of 
the  votes  in  these  towns  (omitting  Shutesbury)  was :  for  Mr. 
Perry,  339  ;  for  Mr.  Montague,  319.  The  vote  of  the  town  of 
Shutesbury,  as  counted  by  the  town  clerks  of  the  district,  was  : 
for  Mr.  Perry,  34;  for  Mr.  Montague,  55,  If  this  count  be  cor- 
rect, the  whole  vote  of  the  district  would  be  r  for  Mr.  Perry,  373  ; 
for  Mr.  Montague,  374  ;  thus  electing  Mr.  Montague,  by  one  bal- 
lot. And  the  questions  presented,  and  argued  before  the  commit- 
tee, regarded  the  legality  of  the  meeting  and  the  correctness  of  the 
vote  of  Shutesbury. 

The  petitioner  claimed  that  the  meeting  was  illegally  held,  inas- 
much as  it  was  left,  at  one  or  more  times,  in  charge  of  the  town 
clerk,  no  selectman  being  present ;  that  no  proper  counting  of  the 
ballots  was  made  by  the  selectmen  ;  that  the  ballots  thrown,  and 
the  voting  list,  were  not  properly  scaled  up,  and  preserved  as 
required  by  law ;  that  no  such  transcript  of  the  record  as  is 
required  by  law  was  made,  signed  and  sealed,  in  open  town  meet- 
ing ;  and  that  tlie  petitioner,  Perry,  actually  received  over  forty 
ballots,  instead  of  thirtj'-four,  the  number  counted  for  him  by  the 
clerks,  and  upon  which  their  certificate  was  based. 

The  respondent,  Mr.  Montague,  claimed  that  no  such  illegality 
was  shown,  as  would  require  the  committee  to  declare  the  meeting 
void ;  that  the  failure  to  preserve  the  ballots  and  check-list,  and 
the  informality  of  the  i-eturn  to  the  clerks,  were  not  sufficient  omis- 
sions of  legal  requirements,  to  compel  the  committee  to  throw  out 
the  vote  of  the  town  ;  and  that  there  was  no  competent  testimony 


202  MASSACHUSETTS   ELECTION    CASES 1853-1885. 

before  the  committee,  to  warrant  the  inference  that  the  vote  of 
Shutesbiiry  was  other  than  as  it  was  declared  at  the  town  meeting. 
Altliouiili  much  testimony  was  introduced,  there  was  really  little 
conflict  upon  most  of  the  material  facts.  That  the  selectmen  all 
left  the  meeting  in  charge  of  the  town  clerk,  while  the  former 
went  to  dinner,  was  conceded  ;  the  length  of  time  they  were  absent 
was  not  agreed,  but  it  was  between  "  twenty  minutes,"  and  "  after- 
wards of  half  an  hour."  The  town  clerk  would  not  state  whether 
votes  were  tlirown  during  the  time,  but  had  the  impression  that 
none  were  thrown.  Other  testimony  tended  to  show  that  at  least 
one  was  thrown. 

It  was  agreed,  that  the  names  checked  on  the  voting  list,  were 
either  checked  by  the  chairman  of  the  selectmen,  or  by  the  town 
clerk.  The  other  two  members  of  the  board  of  selectmen  appear 
not  to  have  concerned  tliemselves  much,  about  the  meeting,  until 
the  polls  were  closed.  One  testified  that  he  was  out  of  the  hall 
much  of  the  time,  and  was  not  certain  that  he  was  there  more  than 
one-sixtli  of  the  day.  The  junior  member  of  the  board,  although 
in  the  hall,  did  not  remain  in  the  desk  much  of  the  time. 

The  testimony  was  also  uniform,  upon  the  facts  that  the  ballots 
were  left  upon,  or  under,  the  desk,  after  the  meeting  adjourned, 
and  were  not  sealed  up,  as  required  by  law ;  and  that  the  check- 
list was  placed  in  the  town  safe,  and  the  key  left  in  the  safe  ;  also, 
that  the  return  of  the  votes  for  representatives,  was  signed  by  the 
chairman  of  the  board  of  selectmen  only,  in  open  town  meeting. 
The  clerk  and  another  member  of  the  board  signed  it  the  next 
day,  in  the  town  of  Leverett,  on  being  informed,  by  a  clerk  of  one 
of  the  towns  of  the  district,  that  such  signatures  were  wanting. 
The  omission  to  sign  at  the  meeting,  appears  to  have  been 
through  inadvertence. 

The  return  thus  made  conforms  to  the  record  of  the  meeting, 
and  states  the  vote  as  34  for  Perry  and  55  for  Montague.  Neither 
the  record  nor  the  return  states  the  whole  number  of  votes  for 
representative  ;  and  although  each  of  the  selectmen  and  clerk  tes- 
tified, in  regard  to  the  counting  of  the  ballots,  it  was  not  stated,  by 
any  of  them,  that  the  whole  number  of  ballots  thrown  was  ascer- 
tained. The  check-list  was  produced  by  the  chairman  of  the 
selectmen,  and  it  appeared  that  the  whole  number  of  names 
checked,  was  101,  or  12  more  than  the  number  of  votes  given  for 
both  Perry  and  Montague  ;  and  all  the  witnesses  agreed  that  the 
check-list  had  not  been  altered,  since  the  meeting.  There  was 
testimony  that  ballots  were  given,  for  count}'  officers,  that  had  the 
names  of  the  State  officers  torn  otf,  but  retained  the  names  of  the 
representatives ;  and   some   of  the  witnesses  thought  that  there 


PERRY   V.    MONTAGUE.      HOUSE,    1874.  203 

were  ballots  for  State  officers  alone,  but  how  man}',  was  not  defi- 
nitely stated.  There  was  one  ballot  for  two  count}^  officers,  bear- 
ing the  names  of  the  candidates  for  register  of  deeds  and  county 
treasurer,  and  being  the  candidates  whose  names  were  bf)rne  on 
all  the  tickets  for  county  officers  ;  and  yet.  the  record  gave  the 
whole  vote,  for  these  two  men,  as  86  and  92,  respectively. 

The  town  clerk  did  not  count  the  ballots  at  all,  but  recorded 
them,  as  stated  to  him  by  the  chairman  of  the  selectmen.  There 
was  conflicting  testimony,  as  to  the  mode  in  which  the  ballots  were 
counted  ;  whether  the  selectmen  counted  a  part,  and  the  numbers 
counted  by  each  were  added  togeiher,  or  whether  one  of  the 
selectmen  re-counted,  after  the  other  two,  is  left  uncertain.  Mr. 
Reed,  one  of  the  selectmen,  testified  that  he  counted  over  all  the 
ballots  for  representative,  after  the  other  two,  and  the  latter 
were  standing,  so  that  they  might,  and  should,  have  followed  the 
count,  as  made  b}^  Reed.  Both  the  chairman  and  Reed  testified 
that  the  vote  as  counted,  was  55  for  Montague,  and  34  for  Perry. 
All  the  selectmen  testified,  that  the  tickets  which  were  not 
scratched,  were  placed  in  a  pile  by  themselves,  after  being  once 
counted,  and  the  number  written  down ;  and,  in  counting  for 
the  other  officers,  the  number  was  taken,  and  the  number  for  each 
officer,  on  the  scratched  tickets,  added  to  it,  without  re-counting 
the  number  of  straight  tickets.  There  was  a  considerable  number 
of  scratched  tickets,  —  not,  however,  for  representatives. 

The  ballots  bearing  Perry's  name,  were  quite  diff"erent  in 
appearance  from  those  bearing  the  name  of  Montague,  being 
wider  and  longer.  The  desk  was  midwaj-,  at  one  end  of  the 
hall,  upon  a  raised  platform  ;  was  five  feet  two  inches  high  in 
front,  about  eight  feet  long,  and  closed  at  the  end,  but  with  an 
open  space  behind  it,  not  railed  off"  from  the  hall. 

The  top  shelf  of  the  desk  was  dropped  about  two  inches  below 
the  top  of  the  front,  and  there  was  another  shelf  underneath. 
The  ballots  were  counted  on  the  top  shelf,  there  being  no  table 
behind  the  desk,  and  the  clerk  made  his  minutes  on  the  same  shelf. 
Some  voters  were  standing  in  front  of  the  desk,  —  one  on  a 
chair,  —  and  could  overlook  the  count.  One  witness  testified  that  he 
watched  the  count,  and  counted  43  ballots,  on  which  he  saw  Mr. 
Perry's  name,  and  heard  Mr.  Reed  say  there  were  18  in  one  pile, 
and  25  in  another,  for  Perry.  Another  testified  that  he  counted 
48  of  the  broad  ballots,  four  of  them  having  the  representative 
scratched  or  torn.  Mr.  Reed  testified  that,  after  the  ballots 
were  counted  for  all  the  officers,  the}'  were  placed  on  the  shelf, 
under  the  desk.  Mr.  Berry,  the  chairman,  thought  they  were 
so  placed.     Mr.   Ames,  the  other  selectman,  said  that  they  were 


204  MASSACHUSETTS   ELECTION    CASES 1853-1885. 

left  Iving  about,  where  the}'  were  counted.  One  witness,  who 
was  looking  on,  said  that  Mr.  Keed,  after  counting  the  votes, 
placed  ballots  under  the  desk,  and  then  took  them,  or  a  part  of 
Ihcm,  out,  and  counted  them  for  other  officers.  Mr.  Reed  said 
that  he  ph\ced  under  the  desk,  before  the  counting  began,  certain 
ballots  which  were  l3-ing  on  the  top,  and  had  not  been  used.  It 
appeared  that  the  ballot  box  was  quits  small,  and  had  no  cover 
whatever,  but  was  open  upon  the  desk  throughout  the  da}'. 
Some  of  the  Venj  ballots  were  so  long,  that  thej^  required 
folding,  before  being  placed  in  the  box,  as  most  of  the  witnesses 
agreed.  There  was  no  attempt  at  counting,  before  the  close  of  the 
polls. 

On  the  morning  after  the  election,  some  of  the  voters  of  the 
town,  among  them,  the  two  who  testified  to  having  counted  the 
vote  the  preceding  daj',  met  together,  and  one  of  the  party,  having 
procured  the  ke}',  went  into  the  hall,  and  to  the  desk,  where,  as 
was  testified,  the}'  found  most  of  the  ballots,  l^'ing  on  the  top  of 
the  desk.  Mr.  Berry,  the  chairman  of  the  selectmen,  was  the  last 
to  leave  the  hall,  the  night  before,  and  did  not  lock  the  door ;  but 
Mr.  Reed,  who  was  the  selectman  in  charge  of  the  hall,  had  either 
gone  himself,  or  sent  some  one,  to  lock  the  hall,  and  it  did  not 
appear  that  any  one  had  been  in  the  hall,  after  Mr.  Berry  left, 
unless  Mr.  Reed,  or  his  man,  had  gone  in,  to  see  that  the  fires 
were  safe. 

It  was  in  evidence,  that  one  of  the  party  of  seven  (the  men  who 
had  seen  Mr.  Reed  place  the  ballots  under  the  desk) ,  went  at  once 
to  the  desk,  and  took  out  from  the  corner,  where  he  had  seen  the 
ballots  placed,  ten  ballots,  which  had  the  appearance  of  having 
been  folded  and  used,  and  which  bore  Mr.  Perry's  name. 

The  whole  party  of  seven  then  proceeded  to  count  the  ballots, 
lying  on  the  desk,  bearing  Mr.  Perry's  name,  including  the  ten, 
and  the  number  was  found  to  be  44.  They  also  found  two  votes, 
with  the  representative's  name  torn  off,  and  one  pasted. 

They  then  set  to  work,  to  make  a  list  of  the  voters  in  town,  who 
were  believed  to  have  voted  for  Perry,  and,  dividing  the  town  into 
districts,  proceeded  to  get  the  signatures  of  the  voters,  to  a  dec- 
laration that  they  had  so  voted.  When  this  was  completed,  and 
communicated  to  Perry,  he  gave  notice  to  Mr.  Montague,  of  his 
intention  to  contest  the  seat;  gave  notice  to  the  clerk,  that  he 
claimed  a  recount  of  the  vote,  and  further  notified  Mr.  Montague, 
and  the  selectmen,  that  he  desired  to  take  testimony,  at  a  time 
and  place  named,  to  prove  that  there  was  fraud,  or  mistake,  in  the 
record  and  return  of  the  vote  of  Shutesbury,  and  requested  Mr. 
]\Iontague  and  the  selectmen  to  be  present,  and  examine  the  wit- 


PERRY   V.    MONTAGUE.       HOUSE,    1874.  205 

nesses,  if  they  desired.  Neither  of  the  parties  notified,  attended, 
but  Mr.  Perry  proceeded  to  take  the  testimony.  Forty  voters 
deposed  that  they  had  voted  for  Mr.  Perry  ;  and,  before  the  com- 
mittee, two  others  testified  that  thej'  so  voted.  One  of  the  wit- 
nesses also  deposed  that  Mr.  Cramlall,  the  town  clerk,  tried  to 
influence  him  to  vote  against  Mr.  Perry.  Mr.  Crandall  admitted 
that  he  said  something  to  the  witness,  but  that  it  was  a  message, 
that  he  had  been  requested  to  deliver. 

It  was  objected,  on  the  part  of  the  sitting  member,  that  this 
kind  of  testimony  was  n-'t  competent,  and  the  case  of  French  v. 
Bacon  (ante,  p.  184),  was  cited  for  the  committee.  But  that  was  a 
case  of  ex  parte  affidavits,  and  in  that  case  the  committee  received 
the  testimony,  but  did  not  consider  that  its  weight  was  sufficient 
to  overcome  the  evidence  of  a  record,  when  the  whole  number  of 
ballots  tallied  with  the  number  recorded  for  the  several  candidates, 
and  when  the  ballots  and  check-list  had  been  preserved,  according 
to  law.  In  the  present  case,  the  testimony  was  taken,  after  full 
notice  to  the  other  side,  and  with  all  the  opportunity^  to  cross- 
examine,  which  could  have  been  given,  if  the  testimony  had  been 
taken  before  a  commissioner,  appointed  b}^  the  committee.  The 
failure  of  any  party  interested,  to  appear  and  cross-examine, 
seems  significant,  inasmuch  as  the  magistrate,  who  took  the  testi- 
mon}',  and  others  who  were  present,  testified  that  the  whole  pro- 
ceeding was  conducted  in  a  public,  and  entirely  proper  manner,  in 
the  centre  of  Shutesbury. 

An  attempt  was  made,  to  discredit  the  testimony  of  some  of  tlie 
forty  witnesses,  by  impeaching  their  reputation  for  truth  and 
veracity. 

The  committee  do  not  deem  it  necessary  to  pass  upon  the  weight 
of  the  testimony  on  this  point,  for  the  reason,  that  of  the  ten  wit- 
nesses who  were  thus  attacked,  nine  were  checked  as  haviusc 
voted,  and  the  committee  cannot  doubt  that  they  all  voted,  for  Mr. 
Perry.  Indeed,  no  one  seemed  to  question  that  fact  seriously-. 
The  tenth,  however,  was  not  checked;  and  there  was  testimonj', 
to  the  effect  that  he  said,  after  the  meeting,  that  he  had  not  voted. 
The  names  of  the  other  witnesses,  so  voting  for  Perry,  were  also 
all  checked,  and  it  was  in  evidence,  that  neither  Mr.  Perry,  nor  any 
of  his  friends,  had  access  to  the  voting  list,  from  the  time  of  elec- 
tion, until  it  was  produced  at  the  hearing  before  the  committee. 
There  was  no  attempt  to  contradict  or  control  the  testimou}-  of  the 
other  thirty-two  witnesses,  who  swore  they  voted  for  Perr}'. 

Having  stated,  thus  full}',  the  purport  of  the  evidence  in  the  case, 
it  remains  only  to  give  the  conclusions  of  the  committee. 

We  have  not  felt  bound  to  pass  upon  the  question,  whether  the 


20G  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

desertion  of  the  meeting,  by  the  officers,  whose  dut}-  it  was  to 
preside  over  it,  is  sufficient,  of  itself,  to  render  the  meeting  invalid. 
If  it  were  necessary  to  pass  upon  that  question,  however,  all  will 
api)reciate  how  dangerous  it  would  be,  to  decide  that  an  election,  so 
conducted,  should  stand.  If  the  ballot  box  can  be  left  in  the 
charge  of  an  irresponsible  person,  in  a  small  town,  with  or  without 
proof  of  improper  conduct  on  his  part,  and  the  election  go  unchal- 
lenged, and  be  sanctioned  by  the  house  of  representatives,  it  is 
difficult  to  say  what  amount  of  negligence  might  not  be  tolerated, 
in  a  large  city.  It  seems,  at  all  events,  very  like  a  farce,  for  this 
house  to  aid  in  enacting  laws,  to  secure  the  purity  of  the  ballot 
box,  and  yet  admit  to  membership,  persons  elected  in  open  viola- 
tion of  those  laws. 

But  we  rest  our  decision  of  this  case  upon  a  different  ground. 
TVe  find  the  record  of  the  town  to  be  defective,  in  not  stating  the 
whole  number  of  ballots  given  for  any  officer.  We  find  a  discrep- 
ancy between  the  ballots  recorded,  and  the  number  checked  ;  and 
we  find  the  only  proper  evidence  to  ascertain  the  ti'uth,  viz  ;  —  the 
ballots  actuall}^  cast,  are  not  preserved,  so  that  the  committee  are 
kfi  to  resort  to  suppositions  of  their  own,  for  an  explanation  on 
this  point.  We  also  find  that  the  town  clerks  of  the  district  did 
not  have  such  evidence  of  the  vote  of  Shutesbury  as  the  statute  re- 
quired they  should  have  ;  and,  although  it  may  be  said,  that  there 
was  a  free  and  uninterrupted  expression  of  the  will  of  the  people  of 
Shutesbury,  at  said  meeting,  still,  the  undersigned,  a  majority-  of 
your  committee,  feel  that,  in  view  of  the  irregularities,  and  the 
shameful  disregard  of  law  shown  in  the  conducting  of  the  meeting, 
taken  together  with  the  discrepancies  in  the  record,  and  the  con- 
flicting testimou}'  of  the  voters  of  the  town,  as  to  the  number  of 
votes  cast  for  representative,  it  is  exceedingly-  doubtful  and  uncer- 
tain whr.t  that  expression  was.  Therefore,  we  report  the  election 
of  representative,  held  in  the  town  of  Shutesbury,  on  the  4th  of 
Novemlier  last,  void  for  uncertaint}^,  and  that  Albert  Montague  is 
not  entitled  to  a  seat  in  this  house,  as  member ;  but,  that  Charles 
A.  Perry,  having  received  a  plurality  of  all  the  ballots  that  can  be 
ascertained  to  have  been  cast  in  the  district,  is  the  member  elect 
from  tlic  second  Franklin  district,  and  entitled  to  the  seat  now  oc- 
cupied by  Albert  Montague. 

Messrs.  Billings  and  Hurlbdt  submitted  the  following  Minor- 
ity Report  :  — 

The  undersigned,  members  of  the  house  committee  on  elections, 
dissent  from  the  report  of  the  majority  of  that  committee,  and  call 
attention  to  the  following  facts  : 


PERRY   V.    MONTAGUE.      HOUSE,    1874.  207 

The  official  returns  of  the  five  towns  of  the  district,  gave  Albert 
Montague,  the  sitting  member,  374  votes,  and  Charles  A.  Perry, 
the  contestant,  373. 

The  return  of  Shutesbur}-  was :  Montague,  54  ;  PeiTv,  34. 

The  petitioner  demands  the  seat,  on  two  grounds  :  first,  illegali- 
ties in  the  conduct  of  the  election  and  making  pf  returns  ;  second, 
on  an  alleged  error  in  the  count.  He  claims  43  votes  in  Shutes- 
bury,  instead  of  34. 

The  committee  were  unanimously  of  the  opinion,  that  the  meet- 
ing was  legally  called,  and  that  no  fraud  was  shown  in  the  case. 

At  the  hearings  it  appeared,  that  some  one  or  more  of  the  select- 
men was  present  constantly,  while  the  balloting  was  going  on,  with 
the  exception  of  a  short  period  of  from  twenty  minutes  to  half  an 
hour,  at  noon,  when  they  went  to  dinner.  During  that  time,  the 
ballot  box  was  in  the  cnstod}'  of  Mr.  Crandall,  the  town  clerk. 
There  was  conflicting  testimony  as  to  whether  one,  John  Pratt, 
voted  during  that  time.  It  was  not  claimed  that  an}-  other  vote 
was  thrown,  while  the  selectmen  were  gone.  Mr.  Berry  was  pres- 
ent all  the  time,  except  while  thus  out  at  dinner,  and  his  associates, 
Jabez  W.  Reed  and  Warren  Ames,  were  each  present,  at  various 
times,  for  longer  or  shorter  periods,  through  the  day.  All  were 
there,  at  the  close  of  the  polls,  and  participated  in  making  the 
count.  The  town  clerk  was  at  his  post  all  da}',  except  during  a 
brief  intei'val,  when  he  went  to  dinner,  after  the  return  of  the  select- 
men, and  he  remained  until  after  the  meeting  adjourned.,  The 
check-list  contains  101  checks,  all  made  by  Mr.  Berry  or  Mr. 
Crandall,  and  they  say  no  person  voted,  whose  name  was  not 
checked,  and  the  name  of  every  man  who  did  vote  was  checked. 

The  voting  took  place  at  a  table  or  desk,  seven  or  eight  feet  long, 
standing  upon  a  platform,  on  one  side  of  the  room,  raised  two  steps 
from  the  floor,  so  that  the  top  of  the  desk,  in  front,  was  about  five 
feet  above  the  floor.  Under  the  table  was  a  shelf.  The  votes  were 
all  kept  in  the  ballot  box,  until  the  voting  was  over.  The  count  of 
votes  occupied  about  half  an  hour,  and  there  is  no  conflict  of  testi- 
mon}',  as  to  the  manner  in  which  it  was  conducted.  Mr.  Berry, 
chairman  of  the  board,  says,  "We  tried  to  sort  them  first,  —  the 
democratic  and  republican,  —  but  they  were  so  much  pasted,  and 
scratched  so  much,  that  we  took  the  name  of  each  candidate  and 
counted  separately,  thus  counting  as  many  times  as  there  were  oflfi- 
cers  to  be  voted  for."  In  each  case,  each  of  the  selectmen  counted 
a  portion,  and  the  three  results  were  added  ;  hid  the  representative  vote 
was  further  ver>Jied,hy  Mr.  Reed  counting  it  again,  while  the  other 
selectmen  stood  on  either  side  of  him,  observing  him,  and  Mr. 
Berry  followed  the  count,  while  Mr.  Reed  made  it,  and  both  gentle- 


208  MASSACHUSETTS   ELECTIOX   CASES  —  1853-18S5. 

men  say  the  vote  was,  as  called  off  by  Mr.  Berry  lo  the  town  clerk, 
55  for  Montague,  and  34  for  Perry,  and  that  all  the  selectmen 
ao-reed  on  the  count.  Mr.  Ames,  the  other  selectman,  says  he 
supposed,  at  the  time,  that  the  count  was  correct ;  though  he  now 
thinks  there  must  have  been  a  mistake,  because  more  than  34  men 
now  make  affidavits  that  they  voted  for  Perry.  Mr.  Berry  and 
Mr.  Retd  still  say  that  they  are  sure  the  count  was  correct,  and 
are  positive  that  there  was  no  mistake. 

A  number  of  persons  were  in  the  hall,  while  the  vote  was  being 
counted,  most  of  them  friends  of  Mr.  Perry.  Several  of  these  lat- 
ter were  watching  the  count ;  one  of  them,  F.  H.  Leonard,  stand- 
ing upon  a  chair  for  that  purpose.  He  says  he  saw  more  than  43 
Perry  ballots  taken  from  the  box,  but  his  testimony  is  loose,  vague 
aad  somewhat  contradictory^  and  more  conjecture  than  fact.  Thus, 
he  testifies,  in  one  place  :  — 

"  Q.  Whether  or  not  you  counted,  at  the  time  the  selectmen  counted 
the  ballots,  the  number  which  had  been  cast  for  Mr.  Perry? 

"  A.  I  did.  The  number  of  wide  ballots,  as  they  were  taken  out  of  the 
ballot  box,  was  48,  and  they  had  Mr.  Perry's  name  on  them  There 
were  two  with  Mr.  Perry's  name  pasted  on  them." 

And  in  another  place  he  testifies  :  —  . 

"  Q.    Did  you  consider,  at  the  conclusion  of  the  election,  that  Perry's 
name  was  on  forty  of  the  ballots,  from  the  size  of  the  ballots? 
"  A.     From  the  size  of  the  ballots.'''' 

The  last  answer  shows,  conclusively,  that  the  witness  was  testi- 
fying to  an  inference,  not  to  a  fact.  Besides,  he  elsewhere  says, 
that  the  chair  he  stood  on  was  three  or  four  feet  from  the  desk,  and 
other  persons  stood  between  him  and  the  selectmen.  It  is  also  a 
suggestive  fact  that  Mr.  Leonard  made  no  objection  to  the  count, 
as  it  was  read  to  the  clerk,  and  announced  in  open  town  meeting, 
by  the  chairman  of  the  board,  nor  did  any  friend  of  Mr.  Perry,  sev- 
eral of  whom  were  present,  intimate  that  there  was  any  error,  or 
make  any  comments  upon  the  matter. 

The  certificates  were  made  up,  and  signed  by  the  proper  officers, 
in  open  town  meeting,  though,  by  an  accident,  as  all  agree,  only 
Mr.  Berry,  of  the  selectmen,  signed  the  certificate  of  the  represen- 
tative vote  that  night.  Mr.  Reed  added  his  name,  the  following 
day,  at  the  meeting  of  the  town  clerks  of  the  district,  in  North  Lev- 
erett. 

Tlie  check-list  was  placed  in  the  town  safe,  in  the  town  hall,  by 
Mr.  Berry  that  evening,  and  the  safe  was  afterwards  locked  by 
Mr.  Reed,  who  did  not  know  the  list  was  there.     After  the  count. 


PERRY   V.    MONTAGUE.      HOUSE,    1874.  209 

the  votes  were  laid  by  Mr.  Reed  on  the  shelf  under  the  desk,  and 
near  to  them,  on  the  same  shelf,  were  other  ballots,  which  had  not 
been  cast  at  the  election,  but  which  were  put  there  to  get  them  out 
of  the  way. 

The  next  forenoon  seven  friends  of  Mr.  Perry,  none  of  them 
town  officers,  procured  the  key  of  the  town  hall  from  Mr.  Reed's 
house  during  his  absence,  (behaving  charge  of  the  building),  and 
went  in,  to  make  an  examination  of  the  ballots.  Two  of  these  men 
state  that  they  found  thirty-four  Perr}'  ballots  scattered  al)Out  on 
the  table,  and  ten  more  on  the  shelf  underneath ;  in  all,  fortj'-four, 
for  Perr}'.  Another  sa3'S  they  found  forty-three  Perrj^  vc)tes.  In 
making  up  this  result,  they  were  obliged  to  select  those  ballots 
which,  in  their  opinion,  had  been  voted,  from  other  ballots  not 
voted,  which  were  Ij'ing  on  the  shelf  and  scattered  around.  The 
witnesses  claimed  to  be  able  to  distinguish  the  two  kinds,  from  the 
allea;ed  fact,  that  the  ballots  voted  had  been  folded.  Mr.  Leonard 
says:  "  We  found  other  ballots  o?i  the  table,  which  had  not  been 
voted,"  and  this  he  infers,  because,  as  he  saj's,  "  they  had  not  been 
folded." 

It  is  a  remarkable  fact,  that  this  self-constituted  committee  did 
not  take  the  precaution  to  preserve  the  ballots  they  found  for 
Perry,  though  Mr.  Leonard  says  he  carried  away  three  or  four  of 
them,  and  still  has  them  at  home,  and  he  don't  know  how  many 
were  taken  away,  in  all.  Again,  Mr.  Leonard  says,  "  the  commit- 
tee (of  seven)  didn't  count  any  hut  votes  loith  Perry's  name  on." 
Rather  weak  testimony'  upon  which  to  contradict  the  sworn  return 
of  the  selectmen,  especially  when  one  of  them,  Mr.  Berry,  sa^'^s  : 
"  Some  of  the  votes  were  folded  and  some  were  not ; "  and  Mr. 
Reed  says,  "  a  good  portion  went  in  open." 

The  Perry  partj-  then  procured  the  affidavits  of  about  forty  men, 
that  the}^  voted  for  Mr.  Perry  at  the  election,  and  these  affidavits 
were  submitted  to  the  committee.  The  name  of  one  of  the  per- 
sons, thus  certifying,  is  not  checked  upon  the  check-list,  and  two 
of  the  selectmen  say,  that  he  not  only  did  not  vote,  but  told  them 
after  town  meeting  that  he  did  not  vote,  though  he  supposed  Perry 
thought  he  did  ;  and  that  he  showed  them  a  Perry  vote,  which  he 
said  had  been  given  him  to  throw,  but  which  he  did  not  use.  Mr. 
Crandall  confirms  the  testimony  that  this  man,  Phelps,  did  not 
vote.  As  to  some  ten  or  a  dozen  of  the  persons  making  the  affida- 
vits, the  contestant  introduced  the  evidence  of  several  of  the  best 
citizens  of  Shutesbury,  and  one  man  from  Leverett,  that  their 
reputation  for  truth  and  veracity,  in  the  communitj'-  where  they 
Uve,  is  bad,  and  this  testimony  was  strengthened  by  the  reluctance 


210  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

which  two,  at  least,  of  the  petitioner's  witnesses  showed,  in  testifj'- 
ing  upon  the  same  point  in  cross-examination. 

From  all  that  appeared  to  the  committee,  we  are  unable  to  find 
any  evidence  that  the  election,  in  the  town  of  Shutesbur}-,  was  not 
conducted  fairly,  and  that  the  return  did  not  express  the  actual 
vote  for  each  and  every  officer  balloted  for.  The  selectmen  and 
town  clerk  all  say,  everything  was  done  fairly  and  honestly,  and 
that  no  mistake  was  made.  And  Mr.  Ames  bases  his  present  sup- 
position, that  there  must  have  been  a  mistake,  solely  on  the  fact, 
as  he  says,  that  they  found  (by  the  affidavits)  that  more  than 
thirty-four  persons  voted  for  Perry.  But  this  belief  of  Mr.  Ames 
is  rebutted  by  the  denial  of  both  his  associates,  whom  he,  and  all, 
concede  to  be  perfectly  honest  men,  and  by  the  fact  that  no  objec- 
tion to  the  result  was  suggested,  when  the  vote  was  counted  and 
declared,  though  several  of  Perry's  friends  stood  b}'  and  watched 
the  handling  and  counting  of  the  votes  and  all  the  proceedings. 

Much  stress  is  laid  upon  the  fact  that  the  total  vote  returned 
for  representative  was  only  eighty-nine,  while  the  total  number  of 
names  checked  was  one  hundred  and  one.  But  we  are  persuaded 
that  such  a  state  of  things  is  nothing  unusual.  The  testimony  was, 
that  some  voted  only  "the  State  ticket;  others  tore  off  the  State 
ticket  entirel}' ;  one  vote  was  cast  for  tAvo  county  officers  alone  ; 
and,  altogether,  there  was  a  considerable  number  of  split  and 
partial  tickets.  Mr.  Berry  says,  some  votes  were  thrown  without 
representative's  name  on  them,  and  E.  L.  Johnson,  one  of  Perry's 
witnesses,  testifies   thus   on  this  point :  — 

"Q.  Did  you  find  any  ballots  thai  did  not  have  any  name  for  rejyresen- 
lative  on  them  ? 

"A.  /  think  there  were  several,  on  which  neither  Mr.  Perry''s  nor  Mr. 
Montagiie's  name  appeared,  and  there  were  one  or  two  which  was  pasted 
over,  but  I  cannot  state  that  exactly.''^ 

Mr.  Ames,  Mr.  Perry's  friend,  upon  the  board  of  selectmen, 
also  says,  there  were  about  "  half  a  dozen"  such.  Now,  if  Mr. 
Montague  had  fifty-five  votes  (which  is  not  disputed),  and  Mr. 
Perry  forty-four,  as  claimed,  it  is  impossible  to  see  how,  out  of  a 
total  of  one  hundred  and  one  votes,  there  could  have  been  "  sev- 
eral" or  ''half  a  dozen"  votes  bearing  neither  Montague's  nor 
Perry's  name.  We  have  no  doubt  that  a  comparison  of  the  check- 
lists and  returns  of  other  towns,  and  wards  in  cities,  would  show  a 
similar  discrepancy,  and,  on  this  point,  we  confidently  appeal  to 
the  experience  of  those  members  of  the  house,  who  have  served  as 
town  or  ward  officers,  and  have  made  similar  returns. 


PERRY   V.    MONTAGUE.       HOUSE,    1874.  211 

The  question  for  the  house  is,  whether  the  election  was  fairly 
and  honestly  conducted,  and  whether  the  voters  of  Shutesbury 
have  been  credited  with  their  correct  vote.  The  burden  of  proof 
is  upon  the  petitioner,  and  he  has  not  sustained  it.  The  evidence 
he  relies  upon  falls  far  short  of  proof.  The  return  of  town  officers 
is  not  to  be  lightly  treated,  nor  dismissed  upon  mere  affidavits, 
especially  where  there  is  such  doubt  thrown  upon  the  reputation  of 
many  of  the  witnesses  for  truth  and  veracity.  The  law  contem- 
plates but  one  vva}'  of  deciding  elections,  and  that  is  by  ballots, 
not  affidavits.  To  reverse  the  rule,  opens  the  door  to  endless  mis- 
chief, and  establishes  a  precedent  which  this  house  has  alwaj's 
refused  to  entertain.  We  call  especial  attention,  in  this  connec- 
tion, to  the  case  of  French  v.  Bacon,  decided  last  year  {ante,  p.  184) , 
where  the  Committee  on  Elections  expressly  refused  to  act  upon 
affidavits,  introduced  for  a  similar  purpose. 

.  In  regard  to  the  alleged  illegalities  in  conducting  the  election 
and  making  the  returns,  we  have  to  say,  that  the  provisions  of  the 
statute  which  covers  such  matters  are  directory,  and  omission  or 
errors,  in  regard  to  such  provisions,  have  not  been  held  to  vitiate  an 
election,  except  in  extreme  cases.  Cushing's  Law  and  Pr.  of 
Legis.  Assem.,  p.  74  ;  Malary  v.  Merrill,  Clarke  &  Hall,  328  ;  Van 
Rensselaer  v.  Van  Allen,  Clarke  &  Hall,  73 ;  Arnold  v.  Lea, 
Clarke  &  Hall,  601  ;  Standish,  Mass.  Election  Cases,  Cashing, 
S.  &  J.,  82  ;  Colchester,  Peckwell,  I.,  503,  506,  507  ;  Hope,  Mass. 
Election  Cases,  Cushing,  S.  &  J.,  71. 

We,  therefore,  recommend  that  the  petitioner  have  leave  to 
withdraw. 

[Upon  the  presentation  of  the  reports,  a  motion  was  made  to 
substitute  the  minority  report  for  that  of  the  majority,  and  pending 
that  question,  the  minority  report  was  amended,  by  a  vote  of  121  to 
74,  by  adding  thereto  the  words,  "And  that  the  seat  now  occupied  by 
Albert  Montague  of  Sunderland  is  hereby  declared  vacant."  The 
motion  to  substitute  the  minority  report,  as  amended,  was  then  carried 
by  a  vote  of  126  to  60.  The  report  as  amended  was  then  accepted, 
thus  giving  the  petitioner  leave  to  withdraw,  and  vacating  the  seat 
held  b}'  Mr.  Montague.  (H.  J.  1874,  p.  117.)  A  new  election  was 
ordered.  (H.  J.  1874,  p.  127.)  Mr.  Montague  was  elected  to  fill 
the  vacancy'.  The  editors  do  not  regard  this  case  as  being  without 
value  as  a  precedent.  The  views  of  the  minority  of  the  Committee 
on  Elections  are  given,  because  the  house  apparently  adopted 
those  views,  and  by  the  same  vote  unseated  the  member  in  whose 
behalf  those  views  were  given.  The  value  of  the  precedent  is 
impaired  because  it  is  impossible  to  know  upon  what  ground  the 


212  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

house  based  its  vote.  However,  it  must  have  decided  that,  for 
the  irregularities  in  Shuteslxuy,  the  election  was  void.  By  the 
journal  of  the  house  it  is  plain  that  the  case  was  an  exciting  one, 
and  the  fact  that  the  contesting  party,  in  his  own  town,  had  fallen 
large)}'  behind  his  opponent,  making  it  tolerably  certain  what 
would  be  the  result  of  a  new  election,  may  have  had  much  to  do 
with  the  action  of  the  house.] 


John  I.  Monroe  v.  John  Cummings. 

Ilouse  Document,  No.  93.  Februai'y  25,  1874.  Report  by  Messrs.  Judd, 
Billings,  IIuklbut,  Merkitt  and  Seymour;  the  minority  report  by 
Messrs.  Bonner  and  Mollis. 

Recount  of  Votes.  Where  two-thirds  of  the  votes  cast  for  representative  in  a  town 
meeting  were  counted  by  the  clerli  alone,  during  the  time  when  the  meeting,  attended 
by  1,000  citizens,  was  engaged  in  an  angry  contest  over  the  question  of  striking  the 
clerk's  name  from  the  jury-list,  and  so  great  confusion  and  disturbance  existed  that 
the  moderator  lost  control  of  the  meeting,  and  linally  declared  it  dissolved  before 
the  question  could  be  settled,  —  it  was  held  by  a  majority  of  the  committee  (a  minor- 
ity dissenting),  that  the  votes  should  not  be  recounted,  —  but  the  house,  accepting 
the  minority  report,  ordered  the  committee  to  recount  the  votes. 

The  committee  having  recounted  the  votes,  pursuant  to  the  order  of  the  house, 
found  and  reported  that  the  original  count  was  correct. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  John  I.  Monroe,  contestant  for  the  seat  now  occupied  by  John 
Cummings,  from  the  twenty-second  Middlesex  district,  asking  that 
the  votes  of  said  district  be  recounted,  reported  that  the  peti- 
tioner have  leave  to  withdraw. 

Messrs.  Bonner  and  Hollis,  submitted  the  following  minority 
report :  — 

The  undersigned,  members  of  the  Committee  on  Elections  to 
whom  was  referred  the  petition  of  John  I.  Monroe,  contestant  for 
the  scat  now  occupied  by  John  Cummings,  of  the  twenty-second 
Middlesex  district,  would  respectfully  ask  permission  to  present 
to  the  house,  their  reasons  for  dissenting  from  the  report  of  the 
committee. 

At  the  hearing  before  them,  it  appeared  that,  at  the  election  in 
Wol)urn,  in  November  last,  held  for  the  choice  of  state  officers,  a 
town  mooting  was  held,  for  the  transaction  of  town  business,  at  the 
same  time  and  place. 


MONROE   V.  CUMMINGS.       HOUSE,   1874.  213 

That  there  were  great  confusion  and  disturbance,  during  said 
meetings,  growing  out  of  an  angry  and  uproarious  contest  over  a 
proposed  revision  of  the  jury-list. 

That  there  were  present  at  least  one  thousand  citizens,  engaged 
in  this  fierce  contest,  during  the  entire  time  the  ballots  for  repre- 
sentatives were  being  counted. 

That,  in  this  contention  over  the  proposed  revision  of  the  jury- 
list,  the  house  was  polled  several  times,  and  twice  by  the  same 
check-list  used  in  the  election  of  state  officers. 

That  G9o  of  the  ballots  cast  for  representatives  were  counted  by 
Mr.  E.  E  Thompson,  clerk  of  the  board  of  selectmen,  and  that  no 
one  else  verified  his  count. 

That,  while  Mr.  Thompson  was  counting  these  ballots,  the  people 
were  vehemently  debating  a  proposition  to  strike  from  the  jury-list 
the  name  of  this  very  Mr.  Thompson. 

That  motions,  resolves  and  amendments,  were  offered  so  fre- 
quently and  irregularly,  and  the  meeting  became  so  boisterous, 
that  the  experienced  moderator  lost  all  control  of  it,  and,  amid 
utter  confusion,  declared  it  dissolved,  and  left  the  hall,  without 
any  vote  authorizing  such  dissolution. 

That,  notwithstanding  this  long  discussion  of  the  jury-list,  and 
the  many  votes  regarding  it,  no  list  was  adopted,  revised,  or  ac- 
cepted. 

That  Mr.  Monroe  was  the  candidate  of  the  liberal  republicans 
and  democrats,  and  that  ticket  received  a  majority  of  94  votes, 
in  a  total  of  1,033. 

That  the  vote,  as  declared,  was  for  Mr.  Cummings,  524  ;  and 
for  Mr.  Monroe,  508. 

We  are  of  the  opinion  that  no  person,  situated  as  Mr.  Thompson 
was,  viz.,  being  clerk  of  the  board  of  selectmen,  and  one  of  the 
prominent  parties  engaged  in  making  up  the  jury-list,  having 
allowed  his  name  to  be  presented  on  the  list  for  approval,  and 
hearing  the  uproarious  contest,  over  the  proposition  to  strike  his 
name,  with  others,  from  the  list,  could  have  counted  the  ballots, 
during  this  fierce  contest,  correctly. 

We  would  therefore  recommend  that  the  petition  be  recommitted, 
with  instructions  to  recount  the  votes  as  prayed  for. 

[Upon  the  i)resentatiou  of  the  reports,  a  motion  to  amend,  as 
recommended  by  the  minority  of  the  committee,  was  carried,  and 
the  petition  was  recommitted  to  the  committee,  with  instructions  to 
recount  the  votes.  (H.  J.,  1874,  p.  205.)  The  committee  re- 
counted the  votes  for  representative,  and  reported  that  their  recount 
corresponded  exactly  with  the   count  and    return   of   the    town 


214  MASSACHUSETTS    ELECTION    CASES 1853-1885. 

officers,  and  that  the  sitting  member  was  entitled  to  the  seat. 
The  report  is  House  Document,  No  109.  The  report  of  the  com- 
mittee was  accepted.  (H  J.,  1874,  p.  229.)  The  report  of  the 
minority  of  the  committee,  upon  the  question  of  recounting  the 
votes,  their  views  having  apparently  been  adopted  by  the  house, 
is  published  by  the  editors  as  a  valuable  precedent.] 


SENATE  — 1875. 

Special  Committee  on  Beturns  of  Votes  for  Senators.  Hon.  Washington 
Tufts,  Hon.  Henry  S.  Hyde.  Hon.  Henry  Smith,  Hon.  Thomas 
Ingalls,  and  Hon.  Eustice  C.  Fitz. 


A.  E.  Thompson  v.  Richard  Britton. 

Senate  Documemt,  No.  15.     January  21,  1875.     Report  by  Mr.  Hyde. 

[In  this  case,  the  special  committee,  to  whom  was  referred  the 
petition  of  A.  E  Thompson  of  "Woburn  for  the  seat  occupied  by 
TJicliard  Britton,  from  the  sixth  Middlesex  district,  reported  that 
the  sitting  member  was  not  eligible  to  the  office  of  senator,  because 
the  naturalization  of  his  father  at  the  Lynn  Police  Court  in  1852, 
upon  which  the  sitting  member  depended  for  his  citizenship  was 
not,  in  the  opinion  of  the  committee,  legal ;  and  the  committee 
reported  a  resolve  that  the  seat  be  declared  vacant.  A  substitute 
for  the  resolve  was  adopted,  that  the  petitioner  have  leave  to  with- 
draw, by  a  vote  of  18  yeas  to  12  nays.  (S.  J.  1875,  p.  53.) 
SnJtserpiently,  a  motion  was  made  to  reconsider  the  vote  by  which 
ihr  .substitute  was  adopted.  The  motion  was  lost,  by  a  vote  of  12 
yeas  to  20  nays.  (S.  J.  1875,  p.  56.)  Sufficient  facts  are  not 
stated,  or  accessible  to  the  editors  to  make  the  case  of  value  as  a 
precedent.  Patrick  A.  Collins  appeared  for  the  petitioner,  and 
Charles  Robinson,  Jr.,  for  the  sitting  member.] 


McMANUS   V.    FAIRBANKS.       HOUSE,    1875.  215 


HOUSE  — COMMITTEE    ON   ELECTIONS,  1875. 

Messrs.  Abraham  B.  Coffix  of  Winchester,  Chairman;  Edward  F.  Smith 
of  Dudley,  John  S.  Eyder  of  Rochester,  Nathan  M.  Wood  of  Swansea, 
George  M.  Warren  of  AVrentham,  Emerson  Geer  of  West  Spring- 
field, and  Albert  E.  Rice  of  Barre. 


James  McManus  v.  John  B.  Fairbanks. 

House  Document,  No.  14.     January  23,  1875.     Report  by  A.  B.  Coffin, 

Chairman. 

Recount  of  Votes  refused.  The  facts  that  a  person,  who  was  not  an  election  officer, 
counted  the  votes,  after  they  had  been  counted  by  one  of  the  selectmen,  —  the  others 
being  present  at  the  polls,  and  the  result  of  the  count  being  the  same,  —  and  that  the 
petitioner  received  less  votes  than  other  candidates  of  his  party  for  other  offices  upon 
the  same  ticket,  are  not  suflScient  grounds  for  a  recount  of  votes  by  the  house  of 
representatives. 

The  Committee  on  Elections,  to  whom  was  referred  the  peiition 
of  James  McManus,  democratic  candidate  for  representative  f.om 
the  thirteenth  Middlesex  district,  for  a  recount  of  the  ballots  cast 
at  the  election,  Nov.  3,  1874,  for  representative  from  said 
district,  having  heard  the  statements  of  the  petitioner,  and  of  the 
sitting  member  from  said  district,  and  the  evidence  offered  by 
each,  report  that  the  town  of  Natick  constitutes  said  district.  The 
petitioner,  at  the  hearing,  gave  as  reasons  for  asking  a  recount,  that 
a  Mr.  Mason,  who  was  not  one  of  the  selectmen  of  Natick,  assisted 
in  counting  the  ballots  at  said  election,  and  that  the  returns  showed 
that  the  democratic  caiididates  for  other  offices  received  more  votes 
than  the  petitioner.  It  appeared  in  evidence,  that  all  the  selectmen 
were  present  at  the  polls  at  said  election  ;  that  one  of  them  counted 
all  the  ballots,  and  that  all  the  ballots  were  again  counted  by  INIr. 
Mason.  The  result  of  the  count  was  the  same.  The  committee 
are  satisfied  that  the  ballots  were  carefully  counted.  The  house 
sustained  an  election,  where  the  Committee  on  Elections  reported 
(^Arnold  v.  Champney,  ante.,  p.  121),  that  nearl}'  four-fifths  of  the 
ballots  were  not  counted  b}'  the  selectmen,  but  were  counted  onlv 
bj'  persons  called  to  assist  in  counting.  The  other  reason  given 
by  the  petitioner,  namelj',  that  he  received  less  votes  than  other 
candidates  of  the  same  part}',  for  other  offices  on  the  same  ballot, 
is  of  such  frequent  occurrence,  as  to  raise  no  presumption,  in  the 


216  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

minds  of  the  committee,  that  a  mistake  was  made  in  the  30unt. 
William  Nutt,  chairman  of  the  board  of  selectmen,  testified  that 
he  saw,  put  in  the  ballot-box,  quite  a  number  of  ballots,  with  the 
vote  for  representative  torn  off. 

Your  committee,  therefore,  recommend  that  the  petitioner  have 
leave  to  withdraw. 

[The  report  of  the   committee    was   accepted.     H.   J.,    1875, 
p.  71.] 


Thomas  R.  Greene  v.  William  E.  Bridgman. 

House  Document,  No.  35.     January  29,  1875.     Report  by  A.  B.  Coffin, 

Chairman. 

Recount  of  Votes  refused.  The  fact  that  the  sitting  member  was  returned,  with  a 
plurality  of  only  five  votes,  and  that  the  petitioner  claimed  that  one  of  the  votes  cast 
was  ille.ijal,  and  that  there  were  rumors  of  other  errors,  which  he  could  not  trace  to 
any  relialjle  source,  —  no  evidence  being  introduced  and  no  claim  of  fraud  made, — 
will  not  justify  a  recount  by  the  house  of  representatives. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Thomas  R.  Greene  for  a  recount  of  ballots,  cast  for  representa- 
tive in  the  fifth  Hampshire  representative  district,  submit  the 
ftjllowing  report : 

The  petitioner,  and  the  sitting  member,  William  E.  Bridgman, 
appeared  before  the  committee.  It  was  admitted  that,  by  the 
returns  of  the  votes  for  representative  in  said  district,  said  Bridge 
man  had  a  plurality  of  but  five  votes. 

The  petitioner  claimed  that  he  had  positive  information,  that  one 
ballot,  bearing  the  name  of  Calvin  Bridgman,  was  counted  for  the 
sitting  mem])er,  and  that  there  were  rumors  of  other  errors,  which, 
however,  he  had  not  been  able  to  trace  to  any  reliable  source. 
Mr.  Bridgman  stated,  that  he  had  no  knowledge  that  there  was  an 
error,  even  of  one  vote.  The  petitioner  introduced  no  evidence,  as 
to  the  error  alleged,  in  counting  this  single  ballot,  and  stated  that 
he  had  no  testimony  to  present,  in  proof  of  any  other  errors,  and 
that  he  did  not  charge  any  fraud  in  the  count  or  returns. 

Even  admitting  a  mistake  in  counting  one  ballot  erroneously  for 
-Mr.  I5ri(lgman,  he  would  still  have  a  plurality  of  four  votes,  pre- 


HOOD   V.    POTTEK.      HOUSE,    1875.  217 

cisely  the  same  number  as  in  the  case  of  Bart  v.  Babbitt,  ante,  p. 
174.  In  this  case  the  house  seems  to  have  adopted,  as  a  precedent, 
that  the  mere  fact  of  a  close  vote  is  not  sufficient  reason  for 
makino;  a  recount. 

Your  committee  therefore  report  that  the  petitioner  have  leave 
to  withdraw. 

[The   report  of    the   committee   was   accepted.     H.   J.,    1875, 
p.  85.] 


Salmon  D.  Hood  v.  John  H.  Potter. 

House  Document,  No.  38.     February  1,  1875.     Report  by  A.  B.  Coffin, 

Chairman. 

Mistake  in  Name  of  Candidate.  It  is  a  well-established  practice  in  this  Common- 
wealth, in  an  election  controversy,  where  there  has  been  an  omission  or  mistake 
in  the  name,  or  in  spelling  the  name  of  a  candidate  on  the  ballots,  upon  proof  of 
the  identity  of  the  person  for  whom  the  ballots  were  intended,  as  by  evidence  of  his 
residence,  profession  or  occupation,  by  the  fact  that  he  was  known  to  be  a  candidate, 
and  no  other  person,  to  whom  the  name  could  be  applied,  was  eligible;  that  the 
ballots  were  printed  and  intended  to  be  printed  for  him,  or  similar  facts  tending  to 
show  for  whom  the  ballots  were  intended,  that  such  ballots  will  be  counted  for 
such  person. 

Same.  Evidence  of  Voter.  A  voter,  however,  will  not  be  allowed  to  testify 
directly  for  what  person  he  intended  his  vote  to  be  cast. 

Same.  Evidence.  Votes  cast  in  Saugus  for  Solomon  D.  Hood  of  Topsfield,  were^ 
counted  for  Salmon  D.  Hood  of  Topsfield,  upon  proof  that  the  latter  was  the  regu- 
lar candidate  of  his  party ;  that  several  of  the  voters  of  Saugus  understood,  from  a 
party  canvassing  for  Hood,  that  his  name  was  Solomon,  and  the  name  was  so  reported 
to  the  printer  of  the  ballots,  who  so  printed  it  upon  two  forms  of  ballots,  which  were 
used  at  the  polls  until  the  mistake  was  discovered;  that  there  was  no  other  voter 
in  Tdpsfield  named  Hood,  beside  the  petitioner,  and  that  the  petitioner  had  several 
times  received  and  answered  letters  addressed  to  him  as  Solomon  D.  Hood. 

Evidence.  Depositions,  when  not  received.  Depositions  of  voters,  taken  without 
proper  notice  to  the  opposite  party  of  the  time  and  place  of  taking  them,  or  waiver  of 
notice  upon  his  part,  are  inadmissible,  in  the  hearing  upon  a  controverted  election, 
unless  taken  by  a  commission  appointed  under  an  order  of  the  house. 

Russell  H.  Co'swbli.  fo7-  petitioner. 
Stephen  B.  Ives  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Salmon  D.  Hood  of  Topsfield,  claiming  the  seat  now  occupied  by 
John  H.  Potter,  as  representative,  from  the  twentieth  Essex  repre- 


218  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

sentative  district,  having  heard  and  considered  the  evidence 
offered,  and  the  arguments  of  the  respective  counsel,  submit  the 
following  report :  — 

The  petitioner,  in  his  petition,  claims  that  he  received  399 
votes,  and  that  John  H.  Putter,  the  sitting  member,  received  but 
356  votes. 

The  returns  of  the'  vote  for  representative,  from  the  four  towns 
composing  said  district,  —  namely,  Saugus,  Topsfield,  Middleton 
and  Lynnfield,  —  were  admitted  to  be  correct,  and  were  as  fol- 
lows :  — 


Saugus. —  Salmon  D.Hood  of  Topsfield, 
Solomon  D.  Hood  of  Topsfield, 
John  H.  Potter  of  Topsfield,  . 

TorsFiELD.  —  Salmon  D.  Hood  of  Topsfield, 
John  H.  Potter  of  Topsfield, 

Middleton.  —  S.  D.  Hood  of  Topsfield,    . 
John  H.  Potter  of  Topsfield, 

Lynnfield.  —  Salmon  D.  Hood  of  Topsfield, 
John  H.  Potter  of  Topsfield, 


204 

80 

162 

62 

82 

28 
51 

25 
61 


The  question  presented  is,  whether  the  80  votes,  cast  in  Saugus, 
bearing  the  name  Solomon  D.  Hood,  ought  to  be  counted  for  the 
petitioner.  If  tliey  are  so  counted,  it  will  be  seen  bj'  the  returns? 
that  he  will  then  have,  in  all,  399  votes,  —  the  number  claimed 
for  him  in  the  petition,  —  and  43  votes  more  than  were  cast 
for  the  sitting  member. 

If  it  shall  clearly  appear,  from  legal  evidence,  that  the  electors 
intended  these  80  votes  for  the  petitioner,  they  should  be  counted 
for  him,  —  otherwise,  not.  This  principle  has  been  so  often  and 
generally  applied,  that  no  authorities  need  be  cited  in  support  of  it. 

By  a  well-established  practice,  in  this  Commonwealth,  in  cases 
where  there  has  been  an  omission  or  a  mistake,  in  the  name,  or  in 
spelling  liie  name,  of  the  candidate  on  the  ballots,  the  identity  of 
the  person  for  whom  the  ballots  were  intended,  may  be  proved  in 
various  ways  ;  as,  by  his  place  of  residence,  his  profession  or  occu- 
pation ;  by  tlie  fact  that  he  was  known  to  be  a  candidate,  and  that 
tliere  is  no  other  person  eligible,  to  whom  the  name  can  be  ap- 
plied ;  by  showing  that  the  ballots  were  printed,  and  intended  to 
be  printed,  for  him.  If,  by  these,  or  similar  facts,  tending  to  show 
for  whom  the  ballots  were  meant  and  intended,  the  identity  of  the 
individual  voted  for  can  be  clearly  established,  such  ballots  are  to 
be  counted  for  him,  to  the  end  that  the  will  of  the  electors  shall 


HOOD    V.  POTTER.       HOUSE,   1875.  219 

prevail.  This  practice  has  been  adopted,  in  the  following  cases, 
■which  have  arisen  in  the  house  of  representatives,  in  this  State  : — 
James  Pratt,  Jr.,  Mass,  Cont.  Elections,  Gushing,  S.  &  J,,  236  ; 
Cogswell  v.  McNeil,  ante,  p.  108  ;  Chapin  v.  Snow,  ante,  p.  96  ; 
Wright  v.  Hooper,  ante,  p.  100;  Arnold  v.  Champney,  ante,  p. 
121  ;  Ilobbs  v.  Bartholmesz,  ante,  p.  182. 

It  was  shown  by  the  testimony  before  the  committee,  that  the 
petitioner  had  been,  for  three  years,  one  of  the  selectmen  of  Tops- 
field  ;  that  he  was  an  auctioneer,  and  had  been  one  of  the  asses- 
sors ;  that  a  resident  of  Topsfield,  who  was  favorable  to  the 
petitioner,  went  to  Saugus  before  the  election,  and  informed  several 
voters  there,  that  it  was  proposed  to  vote  for  Salmon  D.  Hood  of 
Topsfield  for  representative,  describing  him  by  his  occupation  and 
the  town  offices  he  had  held.  Two  of  these  voters  in  Saugus,  and 
who  were  active  in  the  canvass,  understood  from  this  informant, 
that  the  full  name  of  the  proposed  candidate  was  Solomon  D. 
Hood,  —  one  of  whom  so  wrote  the  name  at  the  time,  the  memo- 
randum of  which  was  produced  before  the  committee.  The  name 
of  the  candidate  was  so  reported  to  the  person  in  Saugus  who  had 
the  ballots  printed.  The  votes  for  representative  were  on  the  gen- 
eral ballot  for  State  and  count}'  officers.  The  latter  person,  above 
mentioned,  had  two  forms  of  ballots  printed,  each  bearing  the 
name,  Solomon  D.  Hood.  There  was  a  third  form  of  ballot  dis- 
tributed and  cast  in  Saugus,  having  thereon  the  petitioner's  true 
name.  The  polls  were  opened  at  one  o'clock.  The  fact  of  the 
difference  in  the  two  names  was  not  noticed  until  about  half-past 
two  o'clock.  When  it  was  discovered,  resort  was  had  to  an  auto- 
graph letter,  addressed  by  the  petitioner  to  the  citizens  of  Saugus, 
for  the  purpose  of  learning  which  name  was  correct.  This  letter 
was  signed  Salmon  D.  Hood.  Thereupon,  ballots  were  altered  in 
pencil  and  by  pasting.  The  ballots  cast  for  representative  in  Sau- 
gus were  produced  before  the  committee.  Several  were  found  to 
have  the  name  Salmon  D.  Hood,  in  print,  pasted  over  that  of  Mr. 
Potter ;  and  one,  at  least,  with  the  first  name,  Solomon,  erased,  and 
the  name  Salmon,  written  in  pencil  instead. 

It  was  in  evidence  that  the  petitioner  was  born,  and  had  always 
resided,  in  Topsfield  ;  that,  at  the  time  of  the  election,  there  was  no 
other  voter  in  Topsfield,  by  the  name  of  Hood,  except  the  petitioner, 
and  had  been  none  for  four  years  past ;  that  the  petitioner  had  sev- 
eral times  received  and  answered  letters,  addressed  to  him  as  Solo- 
mon D.  Hood. 

The  petitioner  was  nominated  in  Topsfield,  and  not  by  a  con- 
vention of  the  towns  in  the  district. 

Four,  and  only  four,  of  those  who  voted  Solomon  D.  Hood,  ap- 


220  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

peared  before  the  committee,  and  testified  that  they  were  personally 
acquainted  with  the  petitioner,  or  knew  him  by  reputation.  The 
depositions  of  thirty-nine  other  voters  in  Saugus  were  offered,  in 
which,  as  was  stated  before  the  committee,  the  deponents  alleged 
that  they  cast  ballots  having  the  name  thereon,  Solomon  D.  Hood, 
by  which  name  they  meant  the  petitioner.  This  testimony  was 
rejected.  Depositions  would  seem  to  be  inadmissible  in  such  cases, 
unless  the  opposite  party  interested  has  proper  notice  of  the  time 
and  place  Oi  taking  them,  or  waives  such  notice,  or  they  are  taken 
by  a  commission  appointed  under  an  order  of  the  house.  New 
Marlborough,  Mass.  Cont.  Elections,  Gushing,  S.  &  J.,  323  ;  Reho- 
hoth,  lb.,  48  ;  Aslifield,  lb.,  583. 

Furthermore,  these  depositions  were  inadmissible,  on  the  ground 
that,  in  controverted  elections  in  this  State,  the  practice  has  been, 
not  to  allow  electors  to  testify  du'ectly  for  what  person  their  ballots 
were  intended  to  be  cast. 

The  counsel  for  the  sitting  member,  claimed  that  there  was  no 
evidence  before  the  committee  of  the  intention  of  those  who  cast 
said  eighty  votes,  with  the  four  exceptions  above  named. 

But  under  the  practice  referred  to,  the  intention  may  be  gathered 
from  the  facts  proven.  In  the  above  named  case  of  Arnold  v. 
Chamjmey,  the  committee,  in  their  report,  say,  that  "  no  evidence 
was  presented  to  your  committee,  tending  to  show  by  what  persons 
any  of  these  eight  ballots  (being  the  ones  in  dispute)  were  cast,  or 
what  the  intentions  of  the  persons  casting  them  were."  Yet  the 
house  held,  from  all  the  facts  presented  in  the  case,  that  the  votes 
were  intended  for  Mr.  Champney,  and  so  decided. 

From  all  the  evidence  before  them,  your  committee  are  unani- 
mously of  the  opinion,  that  these  eighty  votes  were  intended  for 
Salmon  D.  Hood,  the  petitioner,  and  should  be  counted  for  him. 

The  error  in  the  name  was  not  so  great  as  in  some  of  the  cases 
above  cited.  It  might  easily  occur  from  a  similarity  in  the  sound 
of  the  two  naines.  In  the  above  case,  of  Joseph  T.  Wright  of 
Marblehead,  there  were  allowed  and  counted  for  him  two  hundred 
and  fifty-three  ballots,  cast  in  ward  5,  Salem,  bearing  the  name 
Thoman  T.  Wright.  The  facts  in  that  case  were  very  similar  to 
those  in  the  one  now  under  consideration. 

The  committee  desire  to  express  then-  appreciation  of  the  honor- 
able conduct  of  the  sitting  member,  in  this  matter  ;  but,  in  view  of 
tiie  evidence,  and  the  precedents  bearing  on  the  case,  they  unani- 
mously report  the  accompanying  resolution. 

[The  resolution  declared  that  the  petitioner  was  entitled  to  the 
seat.  The  report  was  accepted,  and  the  resolution  adopted. 
H.  J.,  1875,  pp.  87,  91.] 


SHAW   V.    BUCKMINSTER.       HOUSE,    1875.  221 


Feedeeick  r.  Shaw  v.  Joseph  Buckminster. 

House  Document  No.  46.     February  3,  1875.     Eeport  by  A.  B.  Coffin, 

Chairman. 

Second  Election,  when  void.  If  an  election  is  reported  as  resulting  in  a  tie,  and  a 
second  election  is  held,  as  provided  by  the  Constitution,  in  cases  where  there  has 
been  a  failure  to  elect,  the  house  will,  upon  petition,  inquire  into  the  first  election, 
and  upon  proof  that,  at  such  election,  the  petitioner  received  a  plurality  of  the  votes, 
the  second  election  will  be  declared  invalid,  and  the  seat  given  to  the  petitioner. 

Mistake  in  the  Xante  of  Candidate.  A  ballot,  upon  which  the  printed  names  of 
the  two  regular  candidates  of  the  party  were  erased  by  pencil,  and  the  words  "fredrc 
p.  Share"  were  found  by  the  committee,  upon  inspection,  to  be  written  in  pencil 
along  the  side  of  the  ballot,  some  of  the  letters  being  somewhat  indistinct,  will  be 
counted  for  Frederick  P.  Shaw,  upon  proof  that  he  was  a  candidate  at  the  election, 
and  that  no  other  person,  by  name  of  Frederick  Shaw,  lived  in  the  city,  although 
there  was  a  person  there  named  Franklin  Shaw. 

Erasure  of  Name  on  Ballot.  Where  pencil  lines,  although  not  very  dark,  are 
drawn  over  the  whole  surname  of  a  candidate,  upon  the  ballot,  leaving  the  rest  of 
the  name  unmarked,  the  ballot  cannot  be  counted  for  such  candidate. 

E.  L.  'RkKi^-E.Y  for  petitioner. 
Thomas  M.  Stetson  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Frederick  P.  Shaw,  claiming  the  seat  now  occupied  b}^  Joseph 
Buckminster,  as  representative,  from  the  tenth  Bristol  district, 
have  heard  the  parties,  their  evidence,  and  the  arguments  of  the 
respective  counsel,  and,  having  considered  the  same,  submit  the 
following  report:  The  tenth  Bristol  district  is  composed  of  wards 
1,  2  and  3,  in  the  citj-  of  New  Bedford,  and  is  entitled  to  two 
representatives. 

The  ma^or  and  aldermen  of  New  Bedford  transmitted  a  certifi- 
cate, dated  Nov.  4,  1874,  to  the  Secretary-  of  the  Commonwealth, 
that,  at  the  election  held  the  3d  day  of  said  November,  said  district 
did  elect  Charles  M.  Peirce,  Jr.,  of  New  Bedford,  representative, 
and  that  Frederick  P.  Shaw  of  New  Bedford  had  795  votes,  and 
Joseph  Buckminster  of  New  Bedford  had  795  votes. 

It  was  admitted,  that  the  petitioner  and  said  Joseph  Buckminster 
both  reside  in  said  ward  2,  and  that  the  latter  gentleman  now 
occupies  his  seat  in  this  house,  under  a  second  election,  held  in 
said  district,  the  fourth  Monda}^  of  November  last,  at  which  second 
election  he  received  189  votes  for  representative,  being  all  the 
ballots  cast ;  and  that  the  petitioner  and  his  friends  took  no  part 
in  said  second  election. 


0  0  o 


MASSACHUSETTS   ELECTIOX   CASES 1853-1885. 


The  second  election  was  held  under  the  last  clause  in  the  fif- 
teenth article  of  amendments  to  the  Constitution  of  Massachusetts, 
which  is  as  follows:  "But  in  case  of  a  failure  to  elect  represen- 
tatives, on  that  da}'  (the  Tuesday  next  after  the  first  Monday  in 
November),  a  second  meeting  shall  be  holden,  for  that  purpose,  on 
the  fourth  Monda}'  of  the  same  mouth  of  November." 

It  therefore  becomes  necessar}^  to  decide  whether  there  was  a 
failure  to  elect,  at  the  election  of  November  3d  ;  for,  unless  there 
was  such  failure,  the  second  election  would  be  clearl}-  invalid. 

The  returns  made  b}'  the  ward  officers,  of  the  ballots  cast  in 
said  district,  for  representatives,  at  the  election  of  November  3d, 
were  as  follows  :  — 


.     8-27 

votes 

.     795 

u 

.     770 

(6 

.     795 

Ct 

9 

(t 

1 

vote 

1 

t; 

1 

a 

Charles  M.  Peiree,  Jr.,  had 
Fr('(lerick  P.  Shaw  had 
Thniiias  H.  Soule  had 
Joseph  Buckminster  had     , 
Ivory  S.  Cornish  had  . 
Frederick  Shaw  had    . 
Isaac  Sawtelle  had 
L.  G.  Hewens  had 


A  petition  was  duly  presented,  to  the  mayor  and  aldermen  of 
New  Bedford,  requesting  a  recount  of  said  ballots.  The  ma3-or 
and  aldirmen  recounted  the  ballots,  and  signed  a  certificate,  dated 
Nov.  5,  1874,  setting  forth  the  result,  which  corresponds  precisely 
with  the  count  and  returns  of  the  ward  officers.  This  certiflcate 
was  signed,  by  said  Joseph  Buckminster,  as  one  of  said  aldermen. 

The  petitioner,  at  the  hearing,  claimed  that  the  ballot  returned, 
as  cast  for  Frederick  Shaw,  ought  to  have  been  counted  for  the 
petitioner,  and  that  he  was  duly  elected,  at  said  first  election,  by  a 
plurality  of  one  vote. 

The  petitioner  caUed  the  city  clerk  of  New  Bedford,  who  testi- 
fied, that  he  had  resided  in  that  city  over  fifty  years  ;  that  he  had 
never  known  any  person,  in  New  Bedford,  by  the  name  of  Fred- 
erick Shaw;  that  he  had  examined  the  list  of  voters,  and  the 
assessors'  list,  in  said  wards,  for  four  years  past,  and  that  he  did 
not  find,  upon  either  of  said  lists,  the  name  Frederick  Shaw. 

The  sitting  member,  Mr.  Buckminster,  testified  that  he  had  lived 
in  said  district,  eleven  years,  and  had  been  five  times  elected  as 
one  of  the  aldermen  of  said  city,  and  that  he  was  not  aware  that 
he  had  ever  heard  of  a  person,  in  New  Bedford,  by  the  name  of 
Frederick  Shaw. 

It  was  claimed,  by  the  sitting  member,  and  by  his  counsel,  that 
It  was  impossible  to  read  the  first  name,  on  the  ballot  returned  for 


SHAW   V.    BUCKJMINSTER.      HOUSE,    1875.  223 

Frederick  Shaw ;  "and,  furthermore,  that  if  this  vote  should  be 
allowed  for  the  petitioner,  another  vote,  bearing  the  name  Joseph 
Buckrainster,  —  which  was  thrown  out,  on  account  of  pencil-marks, 
over  the  word  Buckminster,  —  should  be  counted  for  the  sitting 
member,  and  thereb3',  a  tie  would  still  remain. 

It  was  claimed,  by  the  sitting  member,  and  admitted  by  the 
petitioner,  that  there  was  a  resident,  in  said  district,  by  the  name 
of  Franklin   Shaw. 

The  petitioner,  the  cit}'  clerk,  and  two  other  aldermen,  of  New 
Bedford,  testified  that  they  had  seen  the  ballot,  bearing  the  name 
of  Frederick  Shaw,  and  stated,  in  substance,  that  it  was  very  diffi- 
cult, if  not  impossible,  to  tell  what  the  first  name  was,  or  whether 
it  was  Franklin  or  Frederick.  The  erasure  of  the  name  Buck- 
rainster, on  the  other  ballot  in  question,  was  described,  by  some  of 
these  witnesses,  as  a  light  scrawl  of  a  pencil. 

At  the  close  of  the  hearing,  the  committee  expressed  a  desire  to 
inspect  the  two  ballots  in  dispute.  Both  Mr.  Shaw  and  Mr. 
Buckminster,  stated  their  willingness,  or  desire,  to  have  the  ballots 
produced.  Subsequently',  the  ballots  were  brought  before  the  com- 
mittee, and  the  two  claimed  to  be  doubtful  were  identified  by  the 
city  clerk,  and  b}'  one  of  the  aldermen,  who  assisted  in  the  recount, 
above  mentioned. 

Tie  committee  are  of  the  opinion,  that  the  last  name  on  the  bal- 
lot, claimed  for  Joseph  Buckminster,  was  undoubtedly  erased  ;  the 
pencil  lines  over  it  are  not  very  dark,  but  they  cover  the  whole 
word.  They  unanimously  agree,  that  this  ballot  was  rightly 
rejected. 

The  committee  have  inspected  the  other  ballot  in  question,  with 
great  care.  The  bottom  of  the  printed  part  of  this  ballot,  is  as 
follows :  — 

"  For  Representatives  to  the  General  Court,  10th  Bristol  District : 
Thomas  H.  Soule, 
Joseph  Buckminster." 

It  should  be  observed,  that  the  vote  for  representatives  was  on 
the  general  ballot,  for  state  and  county  offices,  and  that  the  re- 
sidence of  the  candidates  for  representatives,  does  not  appear  on 
the  ballots. 

On  the  ballot  now  refeiTcd  to,  the  names,  Thomas  H.  Soule  and 
Joseph  Buckminster,  are  erased  in  pencil.  Below  is  written,  in 
pencil,  the  name  Chas  M  pears  Jr.  This  ballot  was  counted  for 
Mr.  Peirce.  Then,  somewhat  across  the  corner  of  the  ballot,  is 
written,  also  in  pencil,  the  word  an  or  and^  the  letter  d  being  rather 
indefinite ;  and  then,  immediately  along  the  side  of  the  ballot,  as 


224  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

your  committee  read  the  writing,  is  written,  in  pencil,  fredrc  p 
Shaio.  The  surname  Shaw  is  plainl}'  written.  The  letters  in  the 
first  name  are  irregular,  and  the  e  very  obscure.  The  letter  which 
the  committee  call  a  p,  has  the  appearance  of  having  been  inserted 
after  the  rest  of  the  name  was  written.  This  letter,  occurring 
where  it  does,  might  be  easily  taken  for  a  Zc,  but  it  has  the  shape 
of  a^j,  and,  as  the  writer  began  Mr.  Peirce's  name  with  a  small  />, 
the  committee  are  of  the  opinion,  that  this  letter  was  intended  for 
the  middle  initial  letter  in  the  petitioner's  name.  They  think  that 
no  one  could  mistake  the  first  name  for  Franklin. 

Assuming  the  name  to  be  Frederick  Shaw,  as  returned  by  the 
ward  ofiicers,  and  the  mayor  and  aldermen,  the  committee  are 
unanimous  in  their  conclusion,  that  there  is  sufficient  evidence  to 
show  that  the  ballot  was  intended  for  the  petitioner.  The  mistake 
in  the  name  would  then  be  like  the  omission  of  the  middle  letter 
"A"  in  the  name  of  Jonas  A.  Champney,  which  was  omitted  in 
six  material  votes,  but  which  were  allowed  for  him,  by  the  action 
of  this  house,  Arnold  v.  Champney^  ante^  p.  121. 

By  counting  this  ballot  for  the  petitioner,  he  had  a  plurality  of 
one  vote  at  the  first  election,  and  there  was,  therefore,  no  failure  to 
elect.     A  second  election  could  not  then  be  held. 

If,  however,  it  should  be  decided,  that  there  was  no  choice  at  the 
first  election,  no  good  reason  was  given,  at  the  hearing,  for  holding 
the  second  election  invalid. 

While  your  committee  regret  that  they  are  called  upon  to  decide 
questions  of  such  a  nature,  they  are  unanimous  in  the  results  to 
which  they  have  arrived,  and  report  the  accompanying  resolution. 

[The  resolution  declared  that  the  petitioner  was  entitled  to  the 
seat.  The  report  of  the  committee  was  accepted,  and  the  resolution 
adopted.     II.  J.,  1875,  p.  99.] 


MAXWELL   V.    VINCENT.       HOUSE,    1875.  225 


Orsamus  Maxwell  v.  Edmond  M.  Vincent. 

House  Document,  No.  47.     Februarys,  1875.     Report  by  A.  B.  Coffin, 

Chairman. 

Recount  of  Votes  nlloiced.  Where  the  election  for  representative  was  reported  to 
have  resulted  in  a  tie,  and,  in  one  town  in  the  district,  180  votes  were  returned,  as  cast 
for  representative,  while  only  152  names  were  checked  upon  the  voting  list  in  the 
town,  it  was  held  sufficient  ground  for  making  a  recount  of  the  votes  in  the  district. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Orsamus  Maxwell,  asking  for  a  recount  of  the  ballots  for  repre- 
sentative for  the  fifth  Franklin  district,  report  thereon  as  follows  : 
This  representative  district  is  composed  of  the  towns  of  Cbarle- 
mont,  Heath,  Buckland,  Rowe  and  Monroe. 

The  certificate,  transmitted  to  the  secretary  of  the  Common- 
wealth, pursuant  to  chapter  376,  section  32,  of  the  Acts  of  1874 
(Pub.  Stats,  chap.  8,  sect.  16),  stated  that  there  was  no  choice  of 
representative,  at  the  election  held  in  said  district,  on  the  3d  day 
of  November  last. 

The  returns  from  all  the  towns  in  said  district,  showed  that 
Orsamus  Maxwell,  the  petitioner,  and  Edmond  M.  Vincent,  both 
of  Heath,  had  each  two  hundred  and  eighty-seven  votes,  for  repre- 
sentative. 

No  steps  were  taken  for  a  new  election  ;  but  the  petitioner  served 
the  notices  upon  the  town  clerks  of  the  several  towns  in  said  dis- 
trict, as  prescribed  in  the  47th  section  of  said  chapter,  claiming 
that  he  was  elected,  and  desiring  a  recount  of  the  ballots. 

The  fact  was  shown,  to  the  satisfaction  of  the  committee,  that, 
in  the  town  of  Charlemont,  only  one  hundred  and  fifty-two  names 
were  checked,  on  the  check-list,  at  said  election,  whereas  one  hun- 
dred and  eighty  votes  were  returned,  as  cast  in  that  town  for  repre- 
sentative. 
Your  committee  deemed  these  sufficient  grounds  for  making:  a 
^recount,  and,  thereupon,  caused  the  ballots  cast  in  said  district, 
I  and  the  check-lists  used  in  said  towns,  at  said  election,  to  be  pro- 
duced before  them.     All  the  ballots  cast  in  the  district  have  been 
counted  by  j'our  committee,  with  the  following  result,  as  to  the  vote 
!for  representative  from  said  district  to  the  general  court :  — 

Edmond  M.  Vincent  of  Heath,  ...  288  votes. 

Edward  M.  Vincent  of  Heath,  ...  15     " 

Orsamus  Maxwell  of  Heath,  .        .        .  255     " 

Josiah  W.  Griswold  of  Heath,  ...  3     " 


226  MASSACHUSETTS   ELECTION   CASES  —  1853-18S5. 

By  this  count,  which  the  committee  have  carefully  made,  it  ap- 
pears, that  Edraond  M.  Vincent  received  a  majority  of  the  votes 
cast,  and  thirty-three  more  votes  than  were  thrown  for  the  peti- 
tioner, without  including  the  fifteen  votes  for  Edward  M.  Vincent 
of  Heath.  It  is,  therefore,  unnecessary  to  decide,  whether  these 
latter  votes  were  intended  for  Edmond  M.  Vincent,  and  very  little, 
if  any,  evidence  was  before  the  committee  on  that  point. 

The  error  which  caused  the  return  of  a  tie  vote,  between  the  peti- 
tioner and  Edmond  M.  Vincent,  was  the  result  of  a  mistake  in 
couritins  the  votes,  in  the  town  of  Charlemont.  The  vote  in  that 
town,  for  representative,  was  returned  as  follows : 

Edmond  M.  Vincent,        .        .        .        .        .        118  votes. 
Orsamus  Maxwell, 62     " 

The  committee  found,  by  the  recount,  that  only  thirty  votes  were 
cast,  in  Charlemont,  for  Mr.  Maxwell. 

Mr.  Vincent  was  notified  of  the  hearing,  but  expressed  his  inten- 
tion, b}-  letter,  not  to  appear,  and  his  willingness  to  leave  the  mat- 
ter with  the  committee. 

The  conclusion  to  which  j^our  committee  have  arrived  is,  that 
Edmond  M.  Vincent  of  Heath,  was  duly  elected  representative 
from  said  district.  They  therefore  report  that  the  petitioner  have 
leave  to  withdraw,  and  also  report  the  accompanying  resolution. 

[The  resolution  declared  the  sitting  member  entitled  to  the  seat. 
The  report  of  the  committee  was  accepted,  and  the  resolution 
adopted.     H.  J.,  1875,  p.  99.] 


Seorem  B.  Slate  v.   Charles  H.  Green  et  al. 

House  Document,  No.  59.     February  8,  1875.     Report  by  A.  B.  Coffin, 

Chairman. 

Recount  of  Votes  refused.  The  fact  that  the  sitting  member  was  returned,  as 
elcctciJ,  by  a  plurality  of  only  six  votes,  and  that,  in  one  town  in  the  district,  the  bal- 
lots were  counted  by  two  of  the  voters,  invited  by  the  selectmen  to  perform  that, 
service,  no  objection  lieing  made  during  the  meeting  to  that  manner  of  counting, 
will  not  justify  a  recount  of  the  votes. 

Duty  of  Seleattnen  to  count  the  Votes.  The  duty  of  receiving,  sorting  and  count- 
ing the  votes,  is  imposed  by  law  upon  the  selectmen,  as  sworn  officers,  and  any 
custom  of  allowing  unqualified  persons  to  count  the  votes,  deserves  censure. 

Tlie  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Seorem  B.  Slate,  for  a  recount  of  ballots,  cast  for  representa- 


SLATE    V.    GEEEX.       HOUSE,   1875.  227 

lives,  in  the  third  Franklin  representative  district,  at  the  election 
held  on  the  3d  day  of  November  last,  having  heard  the  petitioner, 
and  the  sitting  members,  submit  the  following  report :  The  peti- 
tioner requests  a  recount,  for  the  reasons  that  there  was  a  great 
variet}'  of  tickets  cast ;  that  the  ballots  were  altered  and  scratched 
in  large  numbers ;  that,  in  the  town  of  Greenfield,  the  votes  were 
counted  by  tellers,  and  not  by  the  selectmen  ;  and  that  the  returns 
from  the  whole  district  showed  that  Charles  H.  Green  of  North- 
field  had  but  nineteen  votes  more,  and  William  Keith  of  Green- 
field but  six  votes  more,  than  the  petitioner  received. 

It  was  admitted,  that  the  returns  showed  only  the  pluralities 
above  stated.  The  house  has  decided,  in  Green  v.  Bridgman, 
ante,  p.  216,  that  the  fact  of  a  small  plurality  is,  in  itself,  no  ground 
for  a  recount,  thereby  following  the  precedent  referred  to  in  that 
report. 

It  was  also  admitted,  that  the  ballots  in  Greenfield  were  counted 
by  two  of  the  voters,  who  were  invited,  by  the  selectmen,  to  per- 
form that  service  ;  and  that  no  objection  to  that  manner  of  count- 
ing was  made  b}'  any  one  during  the  election. 

The  statute  provides,  that  the  votes  "shall  be  received,  sorted 
and  counted,  b}'  the  selectmen."  This  dut}'  is,  therefore,  imposed 
by  law  upon  those  officers,  and  electors  are  entitled  to  have  it  per- 
formed by  them,  with  the  care  and  fidelit}'  implied  in  their  official 
oath. 

Its  performance  .by  others,  however,  would  seem  to  affect  the 
validity  of  the  election,  rather  than  furnish  a  reason  for  a  recount, 
since  dishonest  tellers  might  easily  conceal,  alter  or  destroy  ballots, 
in  which  case,  another  count  would  still  bring  a  false  result. 

While  the  custom  of  allowing  unqualified  persons  to  count  bal- 
lots, deserves  censure,  it  has  been  held  an  insufficient  cause  for 
avoiding  an  election.     Arnold  v.  Champney,  ante,  p.  121. 

There  was  no  evidence,  in  support  of  the  other  allegations,  which 
led  3'our  committee  to  doubt,  that  the  votes  were  correctly  counted 
and  returned. 

The  committee,  therefore,  recommend  that  the  petitioner  have 
leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1875,  p. 
115.] 


228  MASSACHUSETTS   ELECTIOX   CASES 1853-1885. 


William  Taylor  v.  Michael  Carney. 

House  Document,  No.  65.     February  10,  1875.     Report  by  A.  B.  Coffin, 

Chairman. 

Recount  of  Votes  refused.  The  fact  that,  in  a  recount  by  the  aldermen,  of  votes  for 
member  of  Congress  voted  for  upon  the  same  ballot  with  candidates  for  representa- 
tive, it  was  discovered  that  two  rolls  of  ballots,  each  marked  as  containing  100  straight 
tickets,  in  fact  contained,  one  only  88,  and  the  other  only  78  ballots,  is  insufficient 
ground  for  a  recount  of  votes,  by  the  house  of  representatives,  where  the  plurality  of 
the  sitting  member  was  134,  and  there  was  no  evidence,  from  which  the  house  can 
infer  that  other  mistakes  were  probably  made,  the  correction  of  which  would  change 
the  declared  result  of  the  election. 

Joseph  M.  ^igwi-hia.^  for  petitioner. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  William  Taylor,  for  a  recount  of  ballots  for  representatives  from 
the  second  Suffolk  district,  cast  at  the  election  held  the  3d  day 
of  November  last,  report  as  follows :  —  Ward  2,  of  the  city  of 
Boston,  constitutes  said  district,  which  is  entitled  to  three  repre- 
sentatives to  the  general  court. 

It  was  admitted,  that  at  said  election  the  three  sitting  members, 
and  the  petitioner,  according  to  the  returns  by  the  ward  officers, 
received  the  following  number  of  votes :  — 


*o 


Neil  Doherty, 1,077 

Patrick  Collins, 1,017 

Michael  Carney, 1,005 

William  TayloV, 871 

The  counsel  for  the  petitioner  claimed,  that  said  ballots  ought  to 
be  recounted  by  your  committee  for  this  reason  :  The  ballots  cast 
in  said  ward,  at  said  election,  were  examined  and  recounted  by  the 
aldermen  of  Boston,  with  reference  to  the  vote  for  member  of  Con- 
gress. It  was  then  discovered,  by  the  aldermen,  that  of  two  rolls, 
each  of  which  was  marked  "  100  straight  tickets,"  one  contained 
but  88,  the  other  but  78  ballots.  These  facts  were  admitted  by 
Mr.  Carney,  one  of  the  sitting  members. 

The  mistake  relates  to  34  votes.  There  was  no  evidence  intro- 
duced, tending  to  show  for  whom  these  ballots  were  cast,  if  they 
ever  were  cast. 

If  we  assume  that  Mr.  Carney  was  allowed,  in  the  returns,  34 
more  votes  than  he  actually  received,  or  that  the  petitioner  in  fact 
received  that  number  of  votes  more  than  were  returned  by  him,  Mr. 
Carney  would  still  have  a  plurality  of  100. 


QUIRK  V.  Mcdonald,     house,  1875.  220 

It  was  adinittpd,  that  no  other  error  was  discovered  by  the  alder- 
men, in  the  vote  of  said  ward,  or  in  the  returns  of  the  ward  officers. 

The  character  of  this  error  is  such,  in  the  opinion  of  the  com- 
mittee, as  not  to  lead  them  to  infer  tliat  other  mistakes  were  prob- 
ably made,  the  correction  of  which  would  give  the  petitioner  a  plu- 
rality. The  committee,  therefore,  report  that  the  petitioner  have 
leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1875, 
p.  121.] 


Moses  F.  Carr  v.  Nathan  M.  Hawkes. 

House  Document,  No.  71.     February  11,  1875.     Report  by  A.  B.  Coffin, 

Chairman. 

[In  this  case,  the  committee  of  the  house  of  representatives  re- 
fused to  recount  the  votes  cast  in  the  seventeenth  Essex  district, 
no  reason  being  assigned  in  the  petition  for  such  recount  and  the 
petitioner  declining  to  offer  any  evidence  in  support  of  his  petition, 
and  re[^orted  that  the  petitioner  have  leave  to  withdraw.  The 
report  was  accepted.     H.  J.,  1875,  p.  124.] 


Dennis  G.  Quirk  v.  James  A.  McDonald. 

House  Document,  No.  77.     February  16,  1875.     Report  by  A.  B.  Coffin, 

Chamnan. 

Eligibility  of  Representative.  Natxiralization.  Certificate  conclusive.  A  certificate 
of  the  naturalization  of  the  sitting  member,  issued  by  a  competent  court,  and  ad- 
mitted to  be  genuine,  is  conchisive  upon  the  question  of  his  citizenship. 

Same.  Evidence.  Upon  the  question  whether  rtic  sitting  member  was  a  citizen, 
evidence  that  the  certificate  of  naturalization,  issued  by  a  competent  court,  wa? 
obtained  by  fraudulent  representations,  as  to  the  length  of  his  residence  in  this 
country,  is  incompetent. 

Robert  M.  IMorse.  Ju  .  for  pelitioner. 

Charles  Robinson,  Jr  ,/o/-  fiilUng  member. 


230  MASSACHUSETTS    ELECTION    CASES 1853-18S5. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Dennis  G.  Quirk,  claiming  the  seat  now  occupied  by  James  A. 
McDonald,  as  representative,  from  the  first  Middlesex  representa- 
tive district,  having  heard  the  claims  of  the  petitioner,  and  the 
arguments  of  the  respective  counsel,  have  considered  the  same, 
and  report  thereon,  as  follows: — Ward  20,  of  the  city  of  Boston, 
constitutes  said  representative  district. 

Tlie  counsel  for  the  petitioner  claimed,  at  the  hearing  before  the 
committee,  that  the  sitting  member  was  ineligible  to  the  office  of 
representative,  on  the  ground  that  he  was  not  a  dul}'  naturalized 
citizen. 

The  sitting  member  produced  a  certificate  of  his  naturalization, 
which  was  admitted  to  be  genuine,  issued  b}'  the  United  States 
Circuit  Court*  for  the  district  of  Massachusetts,  and  bearing  date 
March  2,  1868. 

The  petitioner  claimed,  and  offered  to  prove,  that  this  certificate 
was  obtained  upon  false  and  fraudulent  representations  as  to  the 
length  of  time  the  applicant  had  resided  in  this  country,  and  that 
these  representations  were  made  intentiooall}',  and  known  by  the 
applicant  (Mr.  McDonald)  to  be  untrue.  This  offer  of  proof  was 
rejected,  the  committee  believing  the}'  had  no  right  to  examine  the 
evidence,  or  grounds  upon  which  the  certificate  of  naturalization 
was  granted. 

It  is  due  to  the  sitting  member  to  state,  that  he  denied  these 
allegations  in  the  most  positive  manner,  and  expressed,  through 
his  counsel,  his  readiness  and  desire  to  meet  and  answer  any  evi- 
dence which  could  be  offered  in  their  support,  claiming  and  offer- 
ing to  show  that  he  had  resided  in  this  country"  since  1858. 

The  authorities  are  numerous,  and,  so  far  as  your  committee  are 
informed,  entirely  uniform,  upon  the  question  raised.  The  grant- 
ing of  naturalization  is  a  judicial  proceeding,  based  upon  evidence, 
the  examination  of  facts,  and  the  action  of  the  court  thereon  is  in 
the  nature  of  a  judgment,  conclusive  and  final.  Chief  Justice 
Marshall,  in  Spratt  v.  Spratt,  4  Peters,  407,  states  the  law  in  these 
words  :  "■  The  various  acts  upon  the  subject,  submit  the  decision, 
on  the  right  of  aliens  to  admission  as  citizens,  to  courts  of  record. 
They  are  to  receive  testimony,  to  compare  it  with  the  law,  and  to 
judge  on  both  law  and  fact.  This  judgment  is  entered,  on  record, 
as  the  judgment  of  the  court.  It  seems  to  us,  if  it  be  in  Icajal 
form,  to  close  inquiry;  and,  like  every  other  judgment,  to  be  com- 
plete evidence  of  its  own  validity."  The  late  Judge  Curtis,  in  one 
of  his  opinions,  adopts  the  language  of  Chief  Justice  Marshall. 
Ex  parte  Cregrj,  2  Curtis,  C.  C,  98. 

The  same  view  of  the  law  seems  to  have  been  taken,  in  all  cases 


QUIRK    V.    McDOXALD.       HOUSE,    1875.  231 

where  a  similai-  question  has  been  raised.  Campbell  v.  Gordon^  6 
Cranch,  176-182;  State  v.  Chesapeake^  7  Cranch,  420;  Com.  v. 
Sheriff,  1  Brewster  (Pa.),  184;  Com.  v.  Leary,  1  Brewster  (Pa.), 
272;  Contested  Elections,  1  Brewster  (Pa.),  130;  The  Acorn,  2 
Abbott,  U.  S.,  444. 

The  committee,  therefore,  report  that  the  petitioner  have  leave 
to  withdraw.* 

*  [Note  by  the  Editors.  Naturalization  a  Judicial  Act.  The  finding  of  the  com- 
mittee, that  naturalization  is  a  judicial  act,  is  correct,  beyond  question.  The  right 
to  it  is  given  by  the  statutes  of  the  United  States  (U.  S.  Rev.  Stats.,  Title  XXX), 
passed  under  the  authority  conferred  upon  Congress  by  the  Constitution  (Art.  I., 
$8),  "to  establish  an  uniform  rule  of  naturalization  " ;  and,  under  these  statutes, 
the  right  can  be  obtained,  only  by  application  to,  and  proof  of,  the  required  facts, 
before  one  of  the  designated  courts.  "  Xaturalization  is  a  judicial  act ;  it  is  made  so 
by  positive  law,  and  is  essentially  so  in  its  nature;  for  it  is  a  cause  to  be  heard  and 
decided  on  evidence,  and  involves  a  question  of  legal  right."  Lowrie,  C.J.,  Rump 
V.  Commomcealth,  30  Penn.  St.  475,  477.  See,  in  addition  to  cases  cited  in  the  above 
report,  Ex  parte  Knowles,  5  Cal.  300.  Naturalization  being  a  judicial  act,  requiring 
the  examination  of  evidence,  and  the  judgment  of  the  court,  it  necessarily  follows 
that  the  application  must  l)e  heard  and  decided,  by  the  court  itself,  and  not  by  any 
clerk,  or  other  ministerial  officer  of  the  court.  In  changing  the  former  practice,  in 
the  New  York  courts,  of  allowing  clerks  of  courts  to  issue  certificates  of  natural- 
ization, the  Supreme  Court  said :  "  The  court,  and  not  the  clerk  of  the  court,  is  to 
admit  the  alien.  And,  as  the  court,  before  admitting  him,  is  to  be  satisfied  of  certain 
facts,  it  follows,  that  the  powers  conferred  upon  the  courts  are  judicial,  and  not  min- 
isterial or  clerical,  and,  consequently,  that  these  powers  cannot  be  delegated  to  the 
clerks,  but  must  be  exercised  by  the  court,  and  require  an  examination  into  each 
case,  sufficient  to  satisfy  the  court  of  the  facts."  In  re  Clark,  18  Barb.  (N.  Y.),  444, 
446.  See,  to  the  same  eflFect,  Myers  V.  Moffet,  1  Brewster  (Penn.),  230.  McCrary 
Elections,  ^  56. 

Certificate  of  Naturalization  conclusive  evidence  of  Citizenship,  in  Election  Contro- 
versies. The  judgment  of  a  court  of  competent  jurisdiction,  granting  citizenship  to 
an  alien,  is  governed  by  the  same  rules  that  control  every  judgment  of  a  court.  It 
cannot  be  impeached,  in  an  election  controversy,  or  in  any  other  collateral  proceed- 
ing, but  must  be  accepted,  as  final  and  conclusive  evidence  of  the  truth  of  all  facts 
necessary  to  obtain  it.  "A  certificate  of  naturalization  issues  from  a  court  of 
record,  when  there  has  been  proper  proof  made  of  a  residence  of  five  years,  and 
that  the  applicant  is  of  the  age  of  twenty-one  years,  and  is  of  good  moral  character. 
This  certificate  is,  as  against  all  the  world,  a  judgment  of  citizenship,  from  which 
may  follow  the  right  to  vote  and  hold  property.  It  is  conclusive  as  such."  Mr. 
Justice  Hunt,  Mutual  Ins.  Co.  v.  Tisdale,  91  U.  S.  238.  "  The  judgment  of  the 
court,  admitting  the  alien  to  become  a  citizen,  is  conclusive,  that  all  the  prerequisites 
have  been  complied  with."  Stark  v.  Insurance  Co  ,  7  Cranch,  421.  So,  in  an  elec- 
tion controversy,  the  court  held,  that  the  certificate  was  the  legal  evidence  of  the 
judgment  of  a  court  of  competent  jurisdiction,  collaterally  in  question  in  the  action. 
It  imputed  absolute  verity,  and  could  not,  if  valid  on  its  face,  be  thus  impeached  in 
this  action.  When  alienage  is  in  issue,  the  judgment  of  the  court,  admitting  the 
alien  to  become  a  citizen,  is  conclusive  evidence  upon  that  point."  People  v.  Pease, 
30  Barb.  (N.  Y.)  588,  604,  affirmed  in  S.  C.,  27  N.  Y.  45.  And,  in  People  v.  Mc- 
Gowan,  77  111.  644,  the  court  held,  in  a  quo  warranto  proceeding,  involving  the  citi- 
zenship of  a  person  elected  as  judge,  that,  as  he  had  a  certificate  of  naturalization, 
it  was  not  open  to  the  contestant  to  show,  that  such  person  had  made  no  preliminary 
declaration  of  intention,  had  not  served  in  the  army  or  navy,  and  came  to  the  United 
States  after  he  was  twenty-one  years  of  age,  —  because  it  must  be  conclusively  pre- 


232  MASSACHUSETTS   ELECTION    CASES 1853-1885. 

[The  report  of  the  committee  was  accepted.     H.  J.,  1875,  p. 
141.] 

sumcd  that  the  court,  granting  tha  naturalization,  heard  evidence,  and  was  satisfied, 
that  all  the  requirements  of  the  law  had  been  complied  with.  To  the  same  effect, 
see  Ritchie  V.  Putnam,  13  Wend.  524;  Banks  v.  Wa/ker,  3  Barb.  Ch.  (N.  Y.)  Rep. 
438;  McCarthy  v.  Marsh,  5  N.  Y.  263;  Gibbons  v.  Sheppard,  2  Brewster  (Penn.)  74. 

Informal  record  of  Naturalization  Proceedings  will  not  impair  the  Certificate  grant- 
ing Citizenship.  In  an  elaborate  opinion,  in  1879,  Mr.  Justice  Blatchford  decided, 
that  where  an  applicant  for  citizenship  complies  with  the  conditions  imposed  on  him, 
as  prerequisites  to  his  admission  to  citizenship,  and  the  unlawfulness,  if  any,  is  in 
tlie  want  of  form  in  the  record  of  the  court,  and  he  receives,  at  the  time,  from  the 
court,  a  certificate  of  naturalization,  such  certificate  is  valid ;  saying :  "  There  must 
be  an  act  of  admission  (to  citizenship),  by  the  court;  but  the  court  has  a  right  to 
say  what  it  will  regard  as  its  act  of  admission,  and  it  has  a  right  to  say  what  it  will 
regard  as  its  order  that  the  applicant  be  admitted,  and  what  it  will  regard  as  his 
admission.  Whatever  the  court  says  is  its  act  of  admission,  and  whatever  the 
court  says  is  its  order  of  admission,  is  such  act  and  such  order,  whenever  the  ques- 
tion is  brought  np,  in  a  collateral  proceeding,  provided  there  is  sufficient  reasonably 
to  amount  to  such  act  and  such  order."  In  re  Coleman,  15  Blatchford,  406,  422. 
And  Mr  Justice  Field,  in  the  case  of  McCoffin,  5  Sawyer,  630,  held,  that  the  validity 
and  efficacy  of  a  judgment,  admitting  a  person  to  citizenship,  are  not  impaired  by 
an  inaccurate  statement  in  its  recitals,  as  such  recitals  constitute  no  part  of  the  judg- 
ment. And  see,  Campbell  y.  Gordon,  6  Cranch,  176;  St.  Paul,  §c.,  R.R.  v.  Burton, 
111  U.  S.  788;  Commo7iwealth  v.  Paper,  1  Brewster  (Penn.)  263. 

IV/mt  may  be  shown  in  Election  Controversy  to  impeach  Certificate  of  Naturaliza- 
tion. The  certificate  of  naturalization,  representing  the  judgment  of  a  court 
admitting  the  applicant  to  citizenship,  is  conclusive  upon  any  question  of  birth, 
age,  residence,  service  in  the  army  or  navy,  filing  of  preliminary  declaration,  or  any 
other  fact  necessary  to  prove,  in  order  to  obtain  it.  Its  validity  can  be  impeached, 
however,  in  an  election  controversy,  to  the  same  extent,  and  in  the  same  manner,  as 
any  other  judgment  of  a  court.  1.  So  the  question  whether  a  certificate  of  natu- 
ralization has  been  granted  or  not,  by  the  court,  is  always  open  to  inquiry.  If  the 
certificiite  is  a  forgery,  or  fraudulently  granted,  without  judgment  of  the  court,  it  is 
null  and  void,  and  may  be  so  treated,  in  any  election  controversy,  or  other  collateral 
proceeding.  The  inquiry  here  is  not  whether  the  person  was  entitled  to  naturaliza- 
tion, but  whether  he  was  in  fact  naturalized;  and,  as  in  the  case  of  any  judgment, 
while  inquiry  into  the  facts  upon  which  it  is  based,  or  necessarily  involved  in  it,  is 
closed  by  the  judgment,  the  question  in  any  proceeding  may  be  raised,  whether  the 
judgment  claimed  was,  in  fact,  ever  rendered  "The  distinction  between  cases  in 
which  judgments  may,  and  those  in  which  they  may  not,  be  impeached  collaterally, 
as  derived  from  the  authorities,  and  founded  in  common  sense,  may  be  stated  thus : 
they  may  be  impeached  by  facts,  involving  fraud  or  collusion,  but  which  were 
not  before  the  court,  or  involved  in  the  issue,  or  matter  upon  which  the  judgment 
was  rendered.  They  may  not  be  impeached  for  any  facts,  whether  involving  fraud 
or  collusion  or  not,  or  even  perjury,  which  were  necessarily  before  the  court,  and 
passed  upon."  The  Acorn,  2  Abbott's  U.  S,  Rep.  434,  445.  And  see,  Preston  v. 
Culbrrtson,  58  Cal.  198;  In  re  Registry  Acts,  2  Brewster  (Penn.)  138;  Common- 
wealth V.  Lcary,  1  Brewster,  270.  2.  The  question  whether  the  court  granting  the 
certificate  of  naturalization  had  jurisdiction  to  do  so,  or  not,  is  always  open  to 
inquiry,  in  an  election  controversy,  or  other  proceeding.  If  the  court  was  without 
j'iri.-,dictioii,  it  could  enter  no  valid  judgment,  and  the  proceeding  to  obtain  it  was 
not,  in  legal  effect,  judicial.  The  judgment,  being  absolutely  void,  may  be  so  re- 
garded, whenever  it  is  called  in  question.  AVhilc  the  presumption  is  in  favor  of  the 
jurisdiction  exercised  by  the  court,  in  entering  the  judgment,  the  question  of  juris- 
diction may  be  raised  in  a  collateral  proceeding.  Jochumsen  v.  Suffolk  Savings 
Bank,  3  Allen,  87;  Mercer  v.  Chace,^  Allen,  242;  Cook  v.  Darling,  18  Pick.  393. 


HASKELL   V.    CLOSSON.      HOUSE,    1875.  233 


William  A.  Haskell  v.  Harrison  Closson. 

House  Documents,  No.  78  and  No.  98.     February  IG,  1875.     Report  by 

A.  B.  Coffin,  Chairman. 

Recount  by  Aldermen.  When  must  be  made.  Under  chapter  376  of  the  Acts  of  the 
year  1874,  ^  27  and  42  (substantially  Pub.  Stats.,  chap.  8,  §§  10  and  11),  the  time 
within  which  a  petition  for  a  recount  of  votes  can  be  received,  and  acted  upon* 
expires  with  the  adjournment  of  the  meeting  of  the  clerks. 

Unauthorized  Recount  of  Votes  void.  A  recount  of  votes,  in  a  ward  of  a  city,  by 
the  aldermen,  after  the  time  fixed  therefor  by  law,  is  illegal  and  void;  and  the 
return  of  the  election,  as  amended  by  the  result  of  such  recount,  cannot  be  regarded 
as  the  true  return  from  the  ward. 

Recount  of  Votes  ordered  by  House  of  Represe?itatives .  Where  votes  cast  in  a 
ward,  forming  part  of  a  representative  district,  were,  in  good  faith  recounted  by  the 
aldermen,  after  the  time  prescribed  by  law,  and  such  recount  showed  that  the  peti- 
tioner had  a  plurality  of  the  votes  in  the  district,  instead  of  the  sitting  memljcr,  who 
had  a  plurality  according  to  the  original  return,  the  house  (against  the  report  of  the 
majority  of  the  committee  on  elections)  ordered  a  recount  of  the  votes,  for  repre- 
sentative, in  the  whole  district.  Upon  such  recount  the  petitioner  was  found  to  be 
elected,  and  the  seat  was  given  to  him. 

William  D.   Northend  for  petitioner. 
Charles  R.  Train  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  William  A.  Haskell  of  Marblehead,  for  the  seat  now  occupied 
in  the  house  by  Harrison  Closson,  as  representative  from  the  fif- 
teenth Essex  representative  district,  having  heard  the  claims  of 
the  petitioner,  and  of  the  sitting  member,  and  the  arguments  of 
their  counsel,  submit  the  following  report:  —  The  fifteenth  repre- 
sentative district,  in  the  county  of  Essex,  is  composed  of  the  town 
of  Marblehead  and  the  fifth  ward  of  the  city  of  Salem,  and  is 
entitled  to  two  representatives.  Harrison  Closson  and  William  B. 
Howard  now  occupy  seats  in  this  house,  as  representatives  from 
said  district.  The  right  of  Mr.  Howard  to  hold  his  seat  is  not 
questioned. 

The  grounds  on  which  the  petitioner  claims  the  seat  occupied  by 

That  the  jurisdiction  of  the  court  granting  naturalization  maybe  inquired  into,  in 
an  election  controversy,  see  Commonwealth  v.  Lee,  1  Brewster  (Penn.)  273 ;  In  re 
Barron,  1  Brewster,  383.  It  may  be  added  that,  under  the  Act  of  Congress,  U.  S. 
Rev.  Stats.,  §  2165,  the  courts  authorized  to  admit  aliens  to  become  citizens  are  "  a 
circuit  or  district  court  of  the  United  States,  or  a  district  or  supreme  court  of  the 
territories,  or  a  court  of  record  of  any  of  the  States,  having  common  law  jurisdic- 
tion, and  a  seal  and  clerk."  Each  State,  however,  having  control  over  its  own  courts, 
may  restrict  their  jurisdiction  over  naturalization,  as  each  may  by  statute  provide. 
Ex  parte  Stephens,  4  Gray,  559.] 


234  MASSACHUSETTS    ELECTION   CASES — 1853-1885. 

Mr.  Closson,  are  set  forth  in  his  petition,  in  the  following  lan- 


guage :  — 


"  First.  That  763  of  the  legal  voters  in  said  district  voted  for 
the  petitioner,  and  but  756,  for  Harrison  Closson. 

"  Second.  That  the  vote,  as  originally  returned  by  the  proper 
ward  oftleers  of  the  fifth  ward  of  Salem,  in  said  representative  dis- 
trict, was  229  for  Harrison  Closson,  when,  in  truth  and  in  fact,  he 
received  only  216  votes  in  said  ward." 

At  the  hearing  before  the  committee,  the  petitioner,  in  support 
of  his  allegations,  relied  upon  the  result  of  a  recount  of  the  bal- 
lots in  said  ward  5,  made  by  the  aldermen  of  Salem  at  the  time, 
and  under  the  circumstances  hereinafter  set  forth. 

The  election  was  held  the  3d  day  of  November.  It  was  ad- 
mitted that,  in  pursuance  to  the  27th  section,  chapter  376,  of  the 
acts  of  the  year  1874,  the  meeting  of  the  clerks  was  duly  held  at 
Marblehead,  at  noon,  on  the  day  following  the  election ;  that  said 
meeting  of  the  clerks  was  not  adjourned,  but  that  they,  on  that 
fJay,  —  to  wit,  November  4,  —  made  out,  over  their  hands,  the 
complete  returns  of  the  votes  of  the  whole  district,  for  represen- 
tatives ;  and  that,  on  the  same  day,  certificates  of  the  election  of 
said  William  B.  Howard  and  Harrison  Closson  were  accordingly 
issued. 

By  those  returns,  the  sitting  members  and  the  petitioner  received 
the  following  number  of  votes  :  — 

William  B.  Howard  of  Marblehead,  .  ,  .  .867 
Harrison  Closson  of  Marblehead,  .  .  .  .765 
William  A.  Haskell  of  Marblehead,      .        .        .        .703 

There  were  several  votes  returned,  for  various  other  persons. 
It  will  be  noticed  that,  by  these  returns,  Mr.  Closson  received  two 
more  votes  than  the  petitioner. 

On  the.  .5th  of  November,  the  city  clerk  of  Salem  was  notified, 
in  writing,  by  ten  or  more  citizens  of  said  ward,  that  they  had 
reason  to  believe  that  the  returns  of  the  ward  officers  of  ward  5 
were  erroneous. 

The  aldermen  of  Salem,  on  the  eth  of  November,  opened  the 
ballots  cast  in  ward  5,  and  examined  or  recounted  them. 

It  was  admitted,  at  the  hearing,  that,  according  to  the  returns 
of  the  recount  of  ballots,  so  made  by  the  aldermen,  IMr.  Closson 
had,  in  ward  5,  nine  votes  less  than  were  returned  for  him  bv  the 
ward  officers. 

As  the  case  now  stands,  if  the  returns  of  the  ward  officers  are 
to  be  taken  as  the  true  return  of  the  vote  of  ward  5,  Mr.  Closson 
18  entitled  to  hold  his  seat.     If,  however,  the  recount  by  the  alder- 


HASKELL   V.    CLOSSON.       HOUSE,    1875.  235 

men  was  legal,  and  the  returns,  as  altered  b}'  the  recount,  are  to 
be  considered  the  true  return  of  the  vote  in  said  ward,  then  the 
l)etitioner  can  rightfully  claim  the  seat. 

There  was  no  charge  or  intimation  of  any  illegal  or  improper 
conduct  on  the  part  of  the  ward  officers,  in  counting  the  ballots 
or  making  their  returns  ;  nor  was  there  any  charge  of  a  fraudulent 
intent,  on  the  part  of  the  aldermen,  in  opening  said  ballots. 

The  petitioner  served  notice  on  the  city  clerk  of  8alem,  and  the 
town  clerk  of  Marblehead,  within  sixty  days  after  the  election, 
claiming  an  election  to  the  office  of  representative  from  said 
district. 

As  the  case  was  presented,  at  the  hearing  before  the  committee, 
in  connection  with  the  facts  admitted,  this  question  arises :  Which 
are  the  legal  and  true  returns  of  the  vote  in  said  ward,  the  returns 
made  by  the  ward  officers,  or  those  returns  as  amended  by  the 
aldermen  ? 

This  question  involves  a  careful  examination,  and  the  interpre- 
tation an  1  intent  of  certain  provisions  in  chapter  376  of  the  acts 
of  the  year  1874,  for  the  preservation  of  ballots  in  cities,  and  for 
an  examination  of  the  ballots  by  the  aldermen. 

The  42d  section  of  said  chapter  (being  the  same,  in  substance, 
as  found  in  Pub.  Stats.,  chap.  7,  §§  34,  35,  36  and  37),  contains  the 
provisions  of  law  for  retaining  and  recounting  votes. 

It  will  be  observed,  that  said  section  fixes  and  limits  the  time 
within  which  the  notice,  by  ten  or  more  citizens,  shall  be  given  to 
the  city  clerk,  and  also,  the  time  within  which  the  ballots  of  the 
ward  shall  be  examined  by  the  aldermen.  Both  of  those  acts  must 
be  done  ''  witl)in  the  time  prescibed  by  law  for  forwarding  returns, 
or  declaring  the  results  of  an  election  "  ;  and,  by  referring  to  the 
27lh  section  of  said  chapter  37G  (which  is  the  same  as  the  10th  and 
lllh  sections  of  chapter  8  of  the  Public  Statutes),  we  shall  ascer- 
tain the  time  fixed  therefor. 

The  time  "  for  forwarding  returns,  or  declaring  the  results  of  an 
election"  (except  as  provided  in  Pub.  Stats.,  chap.  8,  §11),  is  at 
the  meeting  of  the  clerks,  held  at  noon,  on  the  day  following  the 
election,  and  the  time  expires  with  that  meeting.  If,  however,  the 
meeting  of  the  clerks  is  adjourned,  the  time  for  declaring  the  result 
is  at  the  adjourned  meeting.  In  this  case,  there  was  no  adjourn- 
ment, so  that  the  time  for  declaring  the  result  expired  with  the 
meeting,  on  the  4th  of  November.  The  result  of  the  election  was 
declared  on  that  day,  and  certificates  were  issued  accordingly. 
The  notice,  b}-  ten  or  more  citizens,  was  not  given  to  the  cit}"  clerk 
until  November  5th,  and  the  examination  or  recount  of  the  ballots. 


236  MASSACHUSETTS    ELECTION    CASES 1853-1885. 

by  the  aldermen,  did  not  take  place  until  November  6th,  two  days 
after  the  time  fixed  therefor  by  the  statute  had  expired.  The 
aldermen,  therefore,  opened  and  examined  said  ballots  without 
authority,  and  in  violation  of  the  law.  The  evident  intent  of  the 
statute  is,  that  the  ballots  shall  be  examined  before  the  certificate 
of  election  is  issued. 

A  case  somewhat  similar  to  the  one  we  are  now  considering,  was 
reported  to  this  house  in  Davis  \.  Murphy,  ante,  p.  177.  That 
case  arose  in  the  third  Essex  representative  district,  composed  of 
the  town  of  Methuen  and  six  wards  of  the  city  of  Lawrence.  The 
l)etitioner  there  claimed,  in  his  petition,  that  a  recount  of  all  the 
votes  in  the  district  would  show  that  he  had  a  plurality.  The 
aldermen  of  Lawrence  had  recounted  the  votes  of  five  wards  in  the 
district,  after  the  time  allowed  therefor  had  elapsed.  The  result 
of  the  recount,  with  the  returns  from  the  rest  of  the  district,  gave 
the  petitioner,  Mr.  Davis,  a  plurality.  The  committee  there  inter- 
pret "  the  meaning  of  declaring  the  results  of  an  election  for  repre- 
sentatives to  the  general  court  to  be,  whenever  the  clerks  of  towns 
and  cities  comprising  a  representative  district  have  met  and  com- 
pared transcripts  and  ascertained  what  persons  have  been  elected  "  ; 
and  the  committee  sa}'^,  "  that  the  aldermen  of  the  city  of  Lawrence 
had  no  authority  to  recount  the  ballots,  at  the  time  they  did,  for 
the  reason  that  the  notice  to  the  city  clerk  had  not  been  given 
within  the  proper  time."  Thei*e  were  other  elements  in  that  case. 
The  ballots  were  transmitted  by  the  ward  clerks  to  the  city  clerk  ; 
the  ward  seals  were  sent  to  the  city  derk  ;  and  the  ballots  in 
Methuen  had  not  been  veiy  cai-efuUy  preserved,  nor  were  they 
sealed  up,  until  a  day  or  two  after  the  election.  The  majority  of 
the  committee  recommended  that  the  sitting  member  was  entitled 
to  his  seat,  and  the  minority  recommended  that  a  vacanc}''  be  de- 
clared, if  the  house  held  that  a  recount  could  not  be  had.  The 
report  of  the  majorit}^  was  accepted.  A  greater  number  of  pro- 
visions were  violated,  in  that  case,  than  in  the  present  one,  but 
they  are  all  of  the  same  class.  The  case  tends  to  show  that,  in  the 
opinion  of  the  house,  at  that  time,  the  statutes  referred  to  ought  to 
be  strictly  interpreted  and  complied  with. 

Section  42,  of  said  chapter  376,  is  in  the  fourth  division,  entitled 
"  Provisions  Relating  to  the  Preservation  of  Ballots  and 
Check-lists  in  Cities."  It  is  obvious,  that  the  purpose  of  these 
provisions  can  be  gained,  only  by  following  them  with  great  care. 
They  would  seem  to  be  peremptory,  in  their  nature  and  intent, 
rather  than  merely  directory.  As,  by  the  very  terms  of  the  statute, 
the  "amended  return  shall  stand  as  the  true  return  of  the  ward," 


HASKELL   V.    CLOSSON.       HOUSE,    1875. 


237 


it  is  important  that  the  opening  and  examination  of  the  ballots  be 
clone  under  every  safeguard  which  the  law  provides. 

In  this  ease,  as  in  the  one  cited,  no  want  of  good  faith  was  im- 
puted to  the  aldermen.  It  should  be  borne  in  mind,  however,  that 
the  acts  of  dishonest  parties  might  be  the  same,  and  that  the 
intention  is  often  difficult  of  discovery. 

The  question  of  a  recount  of  the  ballots,  by  the  committee, 
although  not  necessarily  arising,  has  been  considered  by  them,  and 
they  are  unanimous  in  the  opinion  that,  if  a  recount  is  desired,  it 
should,  in  this  case,  be  ordered  by  the  house.  If  the  house  shall 
advise  a  recount,  your  committee  recommend  that  they  be  instructed 
to  count  the  ballots  of  the  whole  district. 

Five  of  the  committee  deem  a  recount  injudicious  ;  Mr.  Smith 
and  Mr.  Rice,  of  the  committee,  think  otherwise. 

The  whole  case  may  involve  these  questions :  Is  it  legal,  or 
prudent,  that  the  ballots  of  ward  5  be  counted  again,  by  the  com- 
mittee, after  having  been  opened  as  above  stated?  If  it  is  not, 
which  shall  be  accepted  as  the  true  returns,  those  of  the  ward  officers, 
or  those  returns  as  amended  by  the  aldermen  ? 

With  a  view  of  presenting  these  questions  for  the  decision  of  the 
house,  the  committee  report  that  the  petitioner  have  leave  to  with- 
draw. 

[The  House  recommitted  the  report,  with  instructions  to  count 
the  votes  for  representative  in  the  district.     H.  J.,  1875,  p.  137.] 

Thereupon,  the  committee  counted  the  said  votes,  and  reported 
as  follows :  — 

The  Committee  on  Elections,  to  whom  was  recommitted  their 
report  on  the  petition  of  William  A.  Haskell,  for  the  seat  occupied 
by  Harrison  Closson,  as  representative  from  the  fifteenth  repre- 
sentative district,  in  the  county  of  Essex,  with  instructions  to  count 
the  votes  cast  for  representatives  from  said  district,  have  attended 
to  that  duty,  and  respectfully  report  the  result  to  be  as  follows  :  — 


William  B.  Howard  of  Marblehead, 
William  A.  Haskell  " 
Harrison  Closson       "  " 

Josiah  B  Osborne  of  Salem,    . 
George  K.  Hamson  of  Marblehead, 


.  had  870  votes 

.   "  761   " 

.   "  747   " 

"  688 

.   "  133   " 

Scattering  votes  were  cast  for  other  persons. 
The  said  ballots  were  produced  before  the  committee,  sealed, 
and  properly  certified.     The  city  clerk  of  Salem  testified  that  those 


238  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

of  said  ballots  cast  in  ward  5,  Salem,  were  delivered  to  him,  b)-  a 
constable  of  that  city,  on  the  da}'  of  election,  and  had  been  in  his 
possession  ever  since  that  time,  and  had  not  been  opened,  or  inter- 
fered with,  excepting  that  the  mayor  and  aldermen  of  Salem,  had, 
in  his  presence,  opened  and  recounted  them,  as  before  reported  by 
Your  committee.  The  maj'or  of  Salem,  at  that  time,  and  one  of 
the  aldermen,  who  assisted  iu  the  recount,  testi&ed  that  said  ballots 
were  opened  and  counted,  as  stated  in  the  report  of  the  committee, 
but  tljat  they  were  all  carefully-  preserved,  and  re-sealed.  The 
town  clerk  of  Marblehead  also  testified,  that  the  ballots  cast  in  that 
town  had  been  in  his  possession  unmolested  since  the  day  of  the 
election.  The  result  of  the  count  of  the  ballots  of  ward  5,  by  the 
committee,  is  substantially  the  same  as  that  of  the  count  by  the 
mayor  and  aldermen. 

In  the  ballots  of  Marblehead,  the  committee  find,  after  a  verj' 
careful  count,  nine  less  for  the  sitting  member  (Mr.  Closson)  than 
were  allowed  for  him  in  the  returns  of  the  vote  of  that  town. 

According  to  the  count,  by  the  committee,  of  the  ballots  cast  in 
the  whole  district,  the  petitioner  received  fourteen  votes  more  than 
were  cast  for  Mr.  Closson  ;  and  your  committee,  therefore,  report 
tht  accompanj-ing  resolution  :  — 

[The  resolution  declared  that  the  petitioner  was  entitled  to  the 
seat.  The  report  was  accepted,  and  the  resolution  adopted.  H. 
J.,  1875,  p.  173."] 


KEITH   V.    MAYHEW.      SENATE,   1876,  239 


SENATE  — 1876. 

Special  Committee  on  Beturn  of  Votes  for  Senators  —  Hon.  Selwyn  Z. 
BowjiAN,  Hon.  Charles  Howks,  Hon.  Caleb  Rand,  Hon.  Byhon 
Weston,  and  Hon.  Samuel  S.  Ginnodo. 


William  Keith  et  al.  v.  Horace  H.  Mayhew. 

Senate   Document,   No.    57.      February   25,    1876.      Report   by   all    the 

Committee. 

Eligibility  of  Senator.  Inhabitancy.  The  test  of  domicile,  to  determine  whether 
a  person  has  left  a  former  domicile,  and  gained  a  new  one,  is  his  intention,  as 
gathered  from  all  the  facts  in  the  case, — not  only  from  his  mere  declarations  of  inten- 
tion, but  also  from  all  the  attendant  circumstances.  The  mere  fact  of  removal,  in 
itself,  is  of  little  weight,  to  show  that  the  domicile  has  been  changed;  as,  when  a 
man  has  once  acquired  a  domicile,  the  fact  of  changing  his  residence,  and  the  inten- 
tion of  remaining  in  the  new  residence,  must  both  concur,  in  order  to  establish  a 
new  home. 

Same.  Evidence.  There  are  two  classes  of  evidence,  by  which  to  prove  this 
intention  of  remaining : ^rs<,  the  facts  and  circumstances  of  the  case;  smA,  second, 
the  declarations  of  the  party,  —  not  only  those  made  at  the  trial,  but  those  previously 
made  by  him  to  third  parties. 

Same.  Such  declarations,  while  entitled  to  their  full  weight,  as  competent  evi- 
dence, are  not  conclusive,  but  the  acts  of  the  party  must  also  be  considered ;  for  his 
intention  is  not  merely  what  he  may  say,  or  believe,  but  a  legal  fact,  to  be  proved  by 
his  acts  and  declarations. 

Same.  On  the  question,  whether  a  person  elected  senator  had  -been  an  inhabitant 
of  the  Commonwealth  for  the  space  of  five  years  immediately  preceding  the  election, 
in  November,  1875,  it  appeared,  that  he  was  born  in  Charlemont,  and  had  resided 
there,  with  his  wife  and  daughter  and  two  sisters  of  his  wife,  occupying  for  some 
years  the  homestead  of  his  father-in-law,  owned  by  his  wife  and  her  sisters,  until 
the  summer  of  1870;  he  then  formed  a  partnership  with  a  resident  of  Rockville, 
Conn.,  for  one  year,  in  the  clothing  business  in  that  place,  and  dissolved  his  former 
partnership  in  Massachusetts,  with  the  agreement  that  he  could  renew  it  at  the  end 
of  the  year ;  he  went  to  RockviJle,  boarding  there  with  his  brother-in-law,  for  a 
while,  and  afterwards  bought  a  house,  into  which  he  moved  his  wife  and^  daughter 
in  January,  1871;  he  left  his  wife's  sisters  in  the  house  in  Charlemont,  paying  the 
household  expenses,  and  retaining  his  pew  in  that  place;  in  January,  1870,  1871, 
and  1872,  he  was  elected  a  director  in  the  Shelburne  Falls  National  Bank,  making 
oath,  each  time,  that  he  was  a  resident  of  Massachusetts;  he  was  assessed  and  paid 
a  tax  upon  his  house  and  personal  property,  in  Rockville,  for  1871,  supposing  that 
persons,  even  if  non-residents,  were  liable  to  such  taxation ;  his  name  was  never  on 
the  list  of  voters  in  Rockville;  he  remained  in  Rockville  over  the  year,  but  closed 
his  business  in  December,  1871,  sold  his  house  there,  and  soon  afterwards  returned 
with  his  family  to  Charlemont,  and  renewed  his  former  partnership ;  he  repeatedly 
declared  that  he  did  not  intend  to  live  in  Connecticut,  and  went  there  only  tem- 
porarily, intending  to  return  to  Charlemont,  which  place  he  always  considered  his 


240  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

home ;  it  was  held,  that  he  had  not  lost  his  domicile  in  Charlemont,  but  had  been, 
for  five  years  previous  to  the  election,  an  inhabitant  of  Massachusetts,  and  was 
eligible  to  election  as  senator. 

Chestek  C.  Conant  and  S.  O.  l^x^m  for  petitioners. 

Charles  Allen  and  Henry  Winn  for  silting  member. 

The  Committee  on  Returns  of  Votes  for  Senators,  to  whom  was 
referred  the  "  Remonstrance  of  William  Keith  and  others  against 
the  right  of  Horace  H.  Mayhew  to  a  seat  in  the  Senate,  and  peti- 
tion that  David  Aiken  ma}'  be  admitted  to  a  seat,"  respectfully 
submit  the  following  report : 

This  was  a  case  in  which  the  petitioners  alleged  that  Mr.  May- 
hew  had  not,  at  the  time  of  the  election,  been  an  inhabitant  of  this 
CommonweaUh  for  the  space  of  five  years  immediately  preceding 
the  date  of  such  election,  and  therefore  was  not,  under  the  Consti- 
tution of  this  State,  capable  of  being  elected  as  a  senator,  and  that 
David  Aiken  received  the  next  highest  number  of  votes  at  said 
election,  being  the  highest  number  given  for  any  person  capable  of 
being  elected  as  a  senator  from  the  Franklin  senatorial  district ; 
and  the  petitioners  therefore  pra^^ed  that  the  said  Aiken  might  be 
declared  elected  as  senator  from  said  district. 

It  was  agreed  by  all  the  parties  at  the  hearing,  that  the  returns 
of  the  elections  were  substantially  correct,  by  which  it  appeared 
that  Mr.  Mayhew  had  2,207  votes,  and  Mr.  Aiken  2,063  votes, 
and  that  Mr.  Mayhew  is  entitled  to  his  seat  as  senator,  unless  dis- 
qualified for  the  reasons  as  in  the  petition  set  forth. 

The  case,  both  as  to  the  evidence  and  the  law,  was  presented  to 
the  committee  in  a  very  full  and  thorough  manner,  by  the  able 
counsel  of  the  petitioners  and  of  Mr.  Mayhew,  and  from  the  im- 
portance of  the  questions  involved  and  the  time  spent  and  expense 
incun'ed  in  the  preparation  and  presentation  of  the  case,  by  the 
parties  interested,  the  committee  have  felt  it  their  duty  to  reach 
a  conclusion  only  after  a  most  careful  consideration,  and  such 
consideration  they  have  given  to  the  various  questions  of  fact  and 
of  law  which  have  arisen. 

There  was  at  the  hearing  very  little  difference  of  opinion  be- 
tween the  parties,  as  to  the  actual  facts  of  the  case,  except  in 
regard  to  some  matters  of  minor  importance  which  will  be  here- 
after referred  to  ;  but  the  principal  diflTerence  of  opinion  was  as  to 
the  inferences  of  law  and  fact  to  be  drawn  from  the  evidence. 

The  committee  deem  it  unnecessary  to  state  all  the  evidence  in 
detail,  but  make  the  following  statement  of  facts,  as  comprising 
the  substance  of  all  the  evidence  in  the  case. 

Mr.  Mayhew  was  born,  and  now  lives,  in  the  town  of  Charle- 
mont in  Franklin  County,  and  has  always  had  his  residence  in 


KEITH    V.    MAYHEW.        SENATE,    1876.  241 

that  town,  unless,  during  the  time  he  was  in  Connecticut,  as  herein- 
after stated,  he  became  a  resident  of  the  latter  State,  or  lost  his 
residence  in  Charlemont.  As  selectman,  assessor,  and  otherwise, 
he  had  at  various  times  occupied  official  stations  in  that  town, 
and  no  question  is  raised  that,  at  the  time  of  his  leaving 
Charlemont  to  go  to  Connecticut,  he  was,  in  all  respects,  legally  a 
"resident,"  or  "inhabitant,"  of  Charlemont,  and  a  voter  there. 
His  residence  in  Charlemont  since  1858  has  been  on  the  homestead 
formerly  owned  by  his  father-in-law,  and  since  that  j'ear  this 
homestead  has  been  owned  as  follows :  two  undivided  seventh 
parts,  by  Mr.  Mayhew  and  his  wife,  and  the  remaining  five  sevenths, 
by  the  two  sisters  of  Mrs.  Mayhew,  who  have  lived  with  Mr.  Ma}'- 
hew.  Mr.  Mayhew  subsequently  bought  some  additional  real 
estate  adjoining  the  homestead.  Since  18o8  his  famil}^  resident 
in  the  said  homestead,  has  consisted  of  himself  and  his  wife  and 
two  sisters  of  his  wife,  and  he  also  has  one  daughter ;  these  have 
been  considered  by  him  as  his  family,  and  he  has  provided  for 
them  as  such,  except  that  it  appeared  in  evidence  that  the  two 
sisters  received,  from  other  sources,  small  sums  for  their  clothing 
or  spending  money.  All  the  household  expenses  have  been  paid 
b}'  Mr.  Mayhew. 

In  March,  1869,  Mr.  Ma^'hew  and  a  Mr.  Merrick  became  co- 
partners together  in  the  clothing  busijiess  at  Shelburne  Falls, 
about  eight  miles  distant  from  Charlemont,  and  the  copartnership 
continued  until  Mr.  Mayhew  went  to  Connecticut.  Mr.  Mayhew, 
during  this  copartnership,  retained  his  home  at  Charlemont,  attend- 
ing to  his  business  at  Shelburne  Falls,  and  going  home  two  or 
three  times  a  week.  Shelburne  Falls  is  also  in  the  Franklin  sena- 
torial district. 

In  the  summer  of  1870,  a  Mr.  Pember  of  Rockville,  in  Connec- 
ticut, and  engaged  there,  in  the  clothing  business,  also,  came  to 
Shelburne  Falls,  and  talked  with  the  partners  there  about  their 
taking  an  interest  in  his  business.  The  partners  talked  it  over 
together,  and  thought  it  would  be  for  their  interest  to  make  some 
connection  with  Mr.  Pember.  There  was  some  evidence,  presented 
to  the  committee,  tending  to  show  that  the  partners  thought  that 
Mr.  Pember  could  buy  cloth  to  better  advantage  than  they  could, 
and  that,  by  a  business  connection  with  him,  and  with  the  manu- 
facturers, they  could  secure  an  advantage  to  themselves,  also,  in 
this  respect.  Mr.  Merrick  and  Mr.  Mayhew  agreed  that  some 
arrangement  should  be  made  for  a  partnership  with  Pember,  and 
upon  the  suggestion,  made  by  Mr.  Mayhew,  that  their  both  becoming 
partners  also  in  a  second  establishment,  with  Pember,  would  make 
confusion,  in  case  of  the  death  of  either  party,  it  was  agreed  that 


242  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

Mr.  Maybew  should  enter  into  the  business  with  Pember.  The 
partners  then  made  the  following  arrangement :  the  new  brick 
store  for  their  business,  commenced  in  the  preceding  Spring,  and 
owned  jointly  by  them,  was  to  be  completed,  Mayhew  retaining  his . 
interest  in  it.  Their  copartnership  was  dissolved,  Merrick  buying 
out  Mayhew,  and  Mr.  Mayhew  was  to  have  the  right,  at  the  end 
of  one  year,  to  come  back  into  the  firm  by  paying  for  one-half  of 
the  then  stock  of  goods,  nothing  to  be  charged  for  the  good  will  of 
the  business. 

Mr.  Mayhew  went  to  Rockville,  in  Connecticut,  Sept.  8,  1870, 
and  made  with  Mr.  Pember  an  agreement  of  copartnership  for  one 
year  in  the  clothing  business  in  that  place,  and  went  to  board  with 
his  brother-in-law,  and  did  not  then  intend  to  bring  his  family 
down.  His  brother-in-law  resided  in  Rockville,  and,  having  bought 
another  place,  wished  Mr.  Mayhew  to  purchase  the  place  where  he 
then  lived ;  and,  upon  Mr.  Mayhew's  saying  that  he  did  not  want 
to  make  an  investment,  which  would  prevent  his  leaving  at  any 
time,  Mr.  Maxwell,  his  brother-in-law,  said  that  he  would  sell 
the  place  so  cheap  (for  $5,000),  that  he  could  make  money  by 
selling  it  at  anj^  time  for  $6,000.  He  bought  the  place  for  the 
85,000,  and  did  sell  it  subsequently  for  $6,000.  The  deed  to  him, 
of  this  place,  of  date  of  Oct.  22,  1870,  describes  him  as  "  Horace 
H.  Mayhew,  of  said  Vernon,"  and  the  deed  of  the  same  place, 
from  him,  of  date  Jan.  2, 1872,  describes  him,  likewise,  as  "  Horace 
II.  Mayhew,  of  Vernon,  in  Tolland  Count}'."  Rockville  was  the 
name  given  to  a  village  in,  or  a  part  of  the  township  of,  Vernon. 
The  deed  to  Mr.  Mayhew  was  drawn  b}^  Mr.  Maxwell's  lawj'er, 
and  handed  when  executed  to  Mr.  Mayhew,  and  he  did  not  examine 
it,  as  he  testifies,  and  his  evidence  is  uncontradicted  ;  and  the 
deed  from  him  was  drawn  by  a  lawyer,  from  the  deed  which  ran  to 
him,  and  Mr.  Mayhew  signed  it  without  examination. 

He  bought  all  the  furniture  for  this  new  house,  not  removing  any 
from  his  old  homestead. 

In  the  middle  of  January,  1871,  he  and  his  wife  and  daughter 
commenced  living  in  the  new  house  (his  wife  and  daughter  having 
just  left  Charlemont  for  this  purpose),  and  they  remained  there 
until  Jan.  1,  1872,  when  they  all  went  back  to  the  homestead  in 
Charlemont,  where  they  have  continued  to  live  ever  since.  In  using 
the  terms  "  live,"  "  homestead,"  "  residence,"  etc.,  in  this  state- 
ment of  facts,  the  committee  do  not  wish  to  be  understood  as  using 
tliera  in  their  strict  legal  and  technical  sense,  or  as  expressing  a 
legal  fact  or  conclusion,  but  only  in  their  ordinary  acceptation,  as 
synonymous  with  "living"  or  "being,"  or  the  place  of  living  or 
being.     During  Mr.  Mayhew's  absence  in  Rockville,  his  two  sis- 


KEITH   V.    MAYHEW.       SENATE,    1876.  243 

ters-in-law  continued  to  live  in  the  house  in  Charlemont,  and  he 
paid  the  expenses  of  living  of  the  famil}^  there  ;  in  the  early  part 
of  1871  (and  also  of  1872),  had  his  stock  of  ice  and  wood  put  in 
for  the  3'ear ;  had  various  repairs  made  upon  the  premises,  which 
were  taken  care  of  by  a  man  employed  by  him  for  that  purpose  ; 
and  Mr.  Mayhew,  during  his  said  absence  in  Rockville,  used  oc*- 
casionally,  and  generally  once  in  three  or  four  weeks,  to  go  up  to 
Charlemont,  to  look  after  his  interests  there.  He  retained  his  pew 
in  the  church  at  Charlemont,  and  paid  his  subscription  there- 
for in  the  nature  of  pew-rent.  It  will  be  remembered  that.  Mr. 
Mayhew's  absence  in  Rockville  continued  from  Sept.  8,  1870,  to 
Jan.  1,  1872  ;  that  is  to  say,  through  the  year  1871,  and  the  last 
four  months  of  1870.  In  Charlemont  he  paid  his  taxes  for  1871 
on  his  real  estate  there,  for  which  he  was  assessed  by  the  assessors 
as  a  non-resident,  and  he  was  not  assessed  a  poll-tax,  or  tax  upon 
his  personal  propert3%  —  which  personal  property,  liable  to  taxa- 
tion, was  of  small  value,  and  consisted  principally  of  two  cows- 
He  rendered  in  no  list  to  the  assessors  ;  had  not  been  in  the  habit 
of  renderin<z  in  such  a  list ;  did  not  know  that  he  was  taxed  as  a 
non-resident,  but,  meeting  the  collector  of  Charlemont,  asked  the 
collector  the  amount  of  his  tax,  and  of  that  of  his  sisters,  and  sent 
him  a  check  thei-efor,  when  he  had  returned  to  Rockville. 

In  1871  he  paid  a  tax  in  Rockville,  on  his  real  estate  there,  and 
on  a  watch  and  piano,  which  taxation  was  made  up  from  a  list 
given  by  him  to  the  assessors.  It  was  a  printed  blank,  where, 
opposite  the  printed  words,  "house,"  "watch,  etc.,"  "piano-forte, 
etc.,"  he  had  filled  out  that  he  had  these  articles.  The  original 
blank  was  lost,"  and  therefore  not  put  in  evidence.  From  the  in- 
spection of  the  form  of  blank  used,  it  does  not  appear  that  he  filled 
it  out  either  as  a  resident  or  non-resident,  and  there  is  no  printed 
word  or  special  blank  for  that  purpose,  and  it  appears  from  Mr. 
Mayhew's  testimonj'  that  he  did  not  specify,  in  his  return,  whether 
he  was  a  resident  or  non-resident,  and  that  he  did  not  return  a 
poll-tax.  There  was  no  evidence,  as  against  his  assertion,  to  con- 
vince the  committee  that  the  poll-tax  was  returned  by  Mr.  May- 
hew  in  his  list,  and  the  committee,  therefore,  find  that  it  was  not 
so  returned  by  him.  He  returned  no  list  for  taxation  in  1870. 
Taxes  are  there  assessed  as  of  the  first  Monda}'  in  October.  In 
1870  and  1871  he  was  assessed,  on  the  assessment  lists  of  the 
assessors,  as  a  resident,  and  was  assessed  for  a  poll-tax  for  each 
year,  on  such  lists,  but  he  did  not  see,  and  had  no  knowledge  of 
how  those  lists  were  made  up,  and  it  did  not  appear  that  those  lists 
came  to  his  knowledge  in  any  way.     When  he  paid  the  taxes  for 


244  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

those  3'ears,  the  collector  gave  him  the  gross  sum,  and  he  paid, 
without  examination  into  the  items  or  details. 

His  name  was  never  on  the  voting-lists  in  Vernon,  and  he  did 
not  vote  there.  His  name  was  on  the  voting-lists  in  Charlemont, 
in  1872,  which  were  prepared  October  25.  The  voting-list  of 
Charlemont  of  1871  was  lost,  and  it  did  not  appear  to  the  satis- 
faction of  the  committee,  whether  his  name  was  on  that  list  or  not. 
He  did  not  vote  in  either  of  these  years,  and  it  did  not  appear  that 
he  took  any  action  in  regard  to  placing  his  name  on,  or  remov- 
ing it  from,  the  voting  lists.  At  the  fall  election,  in  1872,  he  was 
in  Charlemont,  but  then  made  declarations  to  persons  there,  to  the 
effect  that  he  could  not  vote  for  Grant  anyhow,  and  he  did  not  care 
about  voting,  as  his  vote  would  not  make  any  difference  in  the  re- 
sult, and  as  some  thought  that  he  had  not  a  right  to  vote  he  would 
not  raise  any  questions  in  the  meeting  by  voting.  One  witness 
testified  that  he  (the  witness)  thought  Mr.  Mayhew  said  that  he 
was  not  a  voter,  but  the  committee  find,  on  all  the  evidence,  that 
the  fact  is  as  above  stated,  although  the  question  would  seem  to  be 
of  little  importance,  as  the  fact  of  Mr.  Mayhew's  believing,  or  not 
believing,  that  he  was  a  voter,  would  have  but  a  very  remote  bear- 
ing upon  the  question  whether  or  not  he  was  in  fact  a  voter.  Mr. 
Mayhew's  wife,  on  letters  of  date  in  November,  1871,  from  the 
church  in  Charlemont,  joined  the  church  in  Rockville  Nov.  5,  1871. 
During  his  absence  in  Connecticut,  the  scythe-snathe  business  was 
still  carried  on,  as  formerly,  in  Charlemont,  by  Mr.  Mayhew  and 
Mr.  Edwards. 

The  business  in  Rockville  was  lucrative,  and  Mr.  Mayhew  con- 
tinued it,  beyond  the  expiration  of  the  year  fixed  for  the  partner- 
ship ;  closed  the  business,  and  sold  out  to  Pember,  in  the  middle 
of  December,  1871,  and,  with  his  family,  moved  back  to  Charle- 
mont, Jan.  1,  1872  ;  at  the  same  time  he  resumed  his  partnership 
with  Mr  Merrick  at  Shelburne  Falls,  and  has  since  continued  in 
that  business  with  him. 

^  Various  evidence  was  offered,  as  to  the  declarations  at  different 
times  of  Mr.  Mayhew,  in  regard  to  his  intention  of  abandoning  his 
residence  in  Charlemont.  The  committee  find  upon  that  evidence 
that  just  previously  to  going  to  Rockville,  and  while  he  was  there, 
Mr.  Mayhew  made  declarations  to  several  parties  both  in  Charle- 
mont and  Rockville,  (to  his  partner  Mr.  Merrick,  Mr.  Kellogg  of 
Hartford,  Mr.  Bissell  of  Vernon,  and  others),  that  he  did  not 
mtend  to  live  in  Connecticut,  and  only  went  there  temporarily, 
and  should  return  to  Charlemont,  and  considered  it  his  home. 

In   January,   1871,  and   in   January,   1872,   he  was   elected   a 
director  of  the  Shelburne  Falls  National  Bank,  and,  as  required 


KEITH   V.    MAYHEAV.       SENATE,    1876.  245 

hy  law,  signed  and  made  oath  to  a  statement,  that  "  I  do  solemn!}' 
swear  that  I  am  a  citizen  of  the  United  States,  and  resident  of  the 
State  of  Massachusetts,"  etc.  These  statements  are  respectively 
dated  Jan.  14,  1871,  and  Jan.  9,  1872.  A  similar  certificate  was 
made  Jan.  11,  1870.  A  deed  was  made,  of  date  Dec.  23,  1871,  to 
Mr.  Merrick  and  "H.  H.  Ma^'hew,  of  Rockville,  Conn.,"  of  land 
in  Shelburne  Falls,  and  it  appeared  from  the  evidence  of  Mr,  Ma}-- 
hew,  that,  at  the  time  it  was  executed,  he  was  confined  to  his  bed 
by  sickness  and  did  not  see  it  until  after  it  was  executed. 

While  in  Rockville,  he  was  asked  to  be  a  director  of  the  bank 
there,  but  refused,  because  he  said  he  did  not  intend  to  stay.  He 
retained,  while  thus  absent,  all  his  interests  in  real  estate  in  Mas- 
sachusetts, and  said  at  the  time  in  repl}'^  to  inquiries  as  to  his  sell- 
ing such  real  estate,  that  he  did  not  want  to  sell  as  he  was  coming 
back  again. 

Although  some  of  the  above  evidence  may  be  imnaaterial,  or 
have  at  least  a  very  remote  bearing  upon  the  questions  iu  dispute, 
the  committee  have  deemed  it  advisable  to  give  a  full  statement  of 
the  facts  in  the  case,  in  order  that  all  the  circumstances  in  regard 
to  it  maj-  be  understood.  It  may  also  be  said,  that  Sir.  May  hew 
testified  before  the  committee  positively  and  unequlvocalh',  that 
it  had  alwa3-s  been  his  intention  to  retain  his  home  in  Charlemont, 
and  to  go  to  Rockville  onl}'  temporarily,  and  "to  make  some 
money,"  and  to  return  to  his  old  home,  at  the  end  of  the  year  of 
his  partnership  with  Pember,  though  he  was  not  sure  but  his  stay 
would  be  protracted  into  the  second  3'ear,  to  close  up  his  affairs. 

The  above  statement  comprises  substantially  all  the  evidence 
which  was  presented  before  the  committee. 

The  question  then  arises  what,  as  applied  to  these  facts,  are  the 
questions  of  law  involved  in  this  case. 

Mr.  Mayhew  claims,  that  he  has  always  been  an  inhabitant  of 
Massachusetts.  The  petitioners  claim  that  during  the  sixteen 
months  when  he  was  in  Rockville,  lie  was  an  inhabitant  of  Con- 
necticut, and  therefore  that,  at  the  time  of  the  last  election,  he  was 
not  legally  capable  of  being  elected  as  a  senator  from  the  Franklin 
district,  under  that  provision  of  the  Constitution,  which  is  as  fol- 
lows: —  "Each  district  shall  elect  one  senator,  who  shall  have 
been  an  inhabitant  of  this  Commonwealth,  five  years  at  least,  im- 
mediatel}'  preceding  his  election,  and,  at  the  time  of  his  election, 
shall  be  an  inhabitant  of  the  district  for  which  he  is  chosen  ;  and 
he  shall  cease  to  represent  such  senatorial  district  when  he  shall 
cease  to  be  an  inhabitant  of  the  Commonwealth,"  \_Artide  22  of 
Amendments  to  Gon$titution.~\ 

The  principal  question,  then,  is  as  to  what  is  the  legal  meaning 


246  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

of  the  word  "  inhabitant,"  and  the  framers  of  the  Constitution, 
realizing  that  this  question  would  arise  in  the  future  as  the  mean- 
iui;  of  that,  and  similar  words,  had  been  the  occasion  of  discussion, 
and  of  the  construction  of  the  courts  in  the  past,  endeavored  to  set 
it  at  rest,  by  proceeding  to  define  the  word  "  inhabitant,"  but  their 
definition  leaves  the  question  where  they  found  it,  and  does  not, 
in  itself,  "  remove  all  doubts."  "  And,  to  remove  all  doubts  con- 
cerning the  meaning  of  the  word  '  inhabitant,'  in  this  Constitution, 
ever}'  person  shall  be  considered  as  an  inhabitant,  for  the  purpose 
of  electing  and  being  elected,  into  any  office  or  place  within  this 
State,  in  that  town,  district  or  plantation,  where  he  d\pelleth  or 
hath  his  home."     [Cojist.  — Part  2d,  Chap.  1,  Sect.  2.'] 

The  point  in  issue  resolves  itself  into  this  :  For  the  five  j'ears 
unmcdiatel}'  preceding  the  second  day  of  November  last,  was  Mr. 
Mayhew  an  inhabitant  of  Massachusetts,  and,  in  other  words,  did 
he  dwell,  or  have  his  home,  in  Massachusetts,  or  was  he  from 
Sept.  8,  1870,  to  Jan.  1,  1872,  an  inhabitant  of  Connecticut,  and 
did  he  dwell  and  have  his  home  in  that  State?  The  legal  gist  of 
the  case  is,  as  to  the  proper  construction  and  meaning  of  the  words 
"inhabitant,"  "dwelling-place,"  and  "  home." 

It  has  been  often  decided,  that  the  words  "  residence,"  "  inhab- 
itancy," "  domicile,"  and  "  home,"  have  substantially  the  same 
meaning  and  are  of  the  same  legal  effect.  Tkorndike  v.  Boston^ 
1  Met.  245;  Opinion  cf  Judges,  b  Met.  588;  Blancliardx  Stearns, 
5  Met.  304  ;  2  Kent  Com.  (12th  ed.),  431,  note  and  cases  ;  2  Bur- 
rill's  Law  Diet.,  77,  and  cases.  And,  although  the  word  *'  dwell," 
has  not  so  frequently  been  the  subject  of  legal  construction,  yet  its 
meaning  has  become  fixed  by  the  decision  of  the  courts,  and  it  has 
the  same  legal  effect.  Shaw  v.  Shaw,  98  Mass.  159,  and  cases. 
"  The  words  to  live,  and  to  reside,  in  these  provisions,  are  obvi- 
ously synonymous,  and  both  relate  to  the  domicile  of  the  party,  or 
the  place  where  he  is  deemed,  in  law,  to  reside,  which  is  not  always 
the  place  of  one's  present  actual  abode.  To  live,  to  reside,  to 
dwell,  to  have  one's  home  or  domicile,  are  usually,  in  our  statutes, 
equivalent  and  convertilile  terms."  Abington  v.  B ridge >.cater,  23 
Pick.  17G;  2  BurriU's  Law  Diet.  77;  Harvard  College  v.  Gore,  5 
Pick.  379.  '•  The  same  question  would  arise,  upon  the  word  dwelt, 
as  upon  the  word  inhabitant,  and  it  will  admit  of  the  same  con- 
struction." 

Webster's  Diet.  "  Dwell :  To  abide  as  a  permanent  resident,  or 
to  inhaltit  for  a  time  ;  to  live  in  a  place  ;  to  have  a  habitation  for 
some  time  or  permanence."  The  words  "  domicile,"  then,  or  "  in- 
lial)itancy,"  or  "  home,"  which  may  be  taken  as  synonyms  of  each 
other,  and  of  the  other  words  used  in  this  connection,  have  come. 


KEITH    V.    MAYHEW.       SENATE,    1876.  247 

as  shown  by  the  text-books,  and  b}'  a  long  series  of  decisions  by 
the  courts,  to  have  a  well-deQned  meaning,  and  may,  perhaps,  be 
best  defined,  as  "  a  residence  at  a  particular  place,  accompanied 
with  positive  or  presumptive  proof  of  an  intention  to  remain  there, 
for  an  unlimited  time."  4  PhiUimore's  Inter.  Law,  45.  "  Domicile 
answers  ver}'  much  to  the  common  meaning  of  our  word  '  home ' ; 
and,  where  a  person  possessed  two  residences,  the  phrase,  '  he 
made  the  latter  his  home,'  would  point  out  that  to  be  his  domicile." 
2  Kent  Com.  (12th  ed  ),  430,  note  ;    Wharton's  Law  Lex.  294. 

The  test  of  domicile,  and  to  determine  whetlier  a  man  luis  lost  a 
former  domicile,  and  gained  a  new  one,  is  his  intention,  as  gatliered 
from  all  the  facts  in  the  case,  not  only  from  his  mere  declarations 
of  intention,  but  also  from  all  the  attendant  circumstances.  The 
mere  fact  of  removal,  in  itself,  is  of  little  weight,  as  showing  that 
the  domicile  was  changed  ;  as,  when  a  man  has  once  acquired  a 
domicile,  the  fact  of  changing  his  residence,  and  the  intention  of 
remaining  in  the  new  residence,  must  both  concur,  in  order  to 
establish  a  new  domicile  for  him.  In  other  words,  to  apply  the 
doctrine  to  this  case :  if  Mr.  May  hew  lost  his  residence  in  Mas- 
sachusetts, and  gained  one  in  Connecticut,  it  must  appear,  either 
from  his  declarations  or  the  facts  in  the  case,  that  he  had  the  in- 
tention of  abandoning  his  old  residence,  and  acquiring  a  new  one, 
as  well  as  that  he  did,  in  fact,  take  up  his  residence  in  Connecticut. 
Sears  V.  Boston,  1  Met.  252.  "  Where  an  old  resident,  and  in- 
habitant, having  a  domicile,  from  his  birth,  in  a  particular  place, 
goes  to  another  place,  or  countr}',  the  great  question,  whether  he 
has  changed  his  domicile,  or  whether  he  has  ceased  to  be  an  inhab- 
itant of  one  place  and  become  an  inhabitant  of  another,  will  de- 
pend mainly  upon  the  question,  to  be  determined  from  all  the 
circumstances,  whether  the  new  residence  is  temporary  or  per- 
manent; whether  it  is  occasional,  for  the  purpose  of  a  visit,  or  of 
accomplishing  a  temporary  object ;  or  whether  ic  is  for  the  purpose 
of  continued  residence  and  abode,  until  some  new  resolution  be 
taken  to  remove.  If  the  departure  from  one's  fixed  and  settled 
abode,  is  for  a  purpose  in  its  nature  temporary-,  whether  it  be  busi- 
ness or  pleasure,  accompanied  with  an  intent  of  returning,  and 
resuming  the  former  place  of  abode,  as  soon  as  such  purpose  is 
accomplished ;  in  general,  such  a  person  continues  to  be  an  inhab- 
itant, at  such  place  of  abode,  for  all  purposes  of  enjoying  civil  and 
political  privileges,  and  of  being  subject  to  civil  duties."  Thorn- 
dike  V.  Boston,  1  Met.  246 ;  Opinion  of  Judges,  5  Met.  589  ; 
Worcester  v.  Wilbraham,  13  Gray,  590. 

"  A  person  cannot  be  said  to  lose  his  domicile,  or  residence,  hy 
leaving  it,  with  an  uncertain,  indefinite,  half-formed  purpose,  to 


248  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

take  up  his  residence  elsewhere.  It  would  be  more  correct  to  say, 
that  he  would  not  lose  his  residence,  until  he  had  got  to  a  new  one, 
with  a  fixed  purpose  to  remain  there,  and  not  to  return  to  his 
former  home.  Until  his  purpose  to  remain  had  become  fixed,  he 
could  not  be  said  to  have  abandoned  his  former  residence."  Mon- 
son  V.  Palmer,  8  Allen,  552.  "  I*^^  has  been  settled  by  a  series  of 
cases  in  this  Commonwealth,  that  the  question  of  domicile  usuallj- 
involves,  not  only  actual  residence,  but  the  intention  and  purpose 
wilh  which  such  residence  is  accompanied."  SJiaw  v.  Shaw,  98 
Mass.  100  ;  Harvard  College  v.  Gore,  5  Pick.  377  ;  Lyman  v.  Fiske, 
17  Pick.  234  ;  Putnam  v.  Johnson,  10  Mass.  488.  In  other  words, 
in  order  that  a  man  ma}'  acquire  a  new  residence,  or  domicile,  the 
fact  of  residence,  and  the  intention  of  remaining  in  the  new  domi- 
cile, as  such,  must  concur.  Bangs  v.  Brewster,  111  Mass.  384. 
It  is  also  a  fundamental  principle  of  the  law  of  domicile,  that  a 
person  can  only  have  one  domicile  at  the  same  time.  He  must 
have  a  domicile  somewhere,  and  that  domicile,  so  far  as  his  rights 
of  voting,  and  of  election  to  office,  and  his  other  rights,  the  exer- 
cise of  which  are  determined  by  his  residence,  are  concerned,  is 
where  he  actually,  and  in  point  of  fact,  has  his  home.  A  man 
cannot  have  a  ''  home,"  or  '•  residence,"  in  one  place,  which  may 
be  regarded  as  his  family  homestead,  and  a  domicile  in  another, 
for  political  purposes,  and  fur  being  elected  to  office,  and,  perhaps, 
a  business  residence  in  a  third  place.  He  cannot  have  his  domi- 
cile, for  social  and  voting  purposes,  in  a  city,  and  for  taxable 
purposes,  in  the  country,  but  the  one  place  or  the  other  will  be  his 
actual  domicile,  and  will  determine  his  rights.  Thorndike  v.  Bos- 
ton, 1  Met.  245  ;  Opinion  of  Justices,  5  Met.  589  ;  Shaw  v.  Shaw, 
98  Mass.  IGO  ;  Abington  v.  Bridgeioater,  23  Pick.  176. 

Therefore,  if  for  any  purpose,  Mr.  Mayhew  had  lost  his  residence 
in  Massachusetts  by  his  absence  in  Connecticut,  he  had  lost  it 
for  all  purposes,  and  was  not  eligible  for  election  as  a  senator. 
Mr.  Mayhew  took  up  his  actual  residence  in  Connecticut  for  six- 
teen months,  using  that  term  in  its  ordinarv  and  not  its  legal 
sense,  and  the  question  then  recurs,  whether,  in  accordance  with 
the  doctrines  above  expressed,  he  had  suca  an  ''intention,"  of 
abandoning  the  old  and  acquiring  the  new  residence,  as  to  have 
lost  his  domicile  in  this  State.  There  are  two  quite  distinct  classes 
of  evidence  to  prove  an  intention  of  this  kind.  In  the  first  place, 
all  the  facts  and  circumstances  of  the  case  are  to  be  taken  into 
consideration.  In  the  second  place,  the  declarations  of  the  party, 
not  only  those  which  are  made  at  the  trial  or  hearing  of  the  cause, 
but  also  those  which  have  been  made  by  him  to  third  persons,  pre- 
vious thereto,  or  previ..us  to  the  commencement  of  legal  proceed- 


KEITH   V.    MAYHEW.       SENATE,    1876.  249 

ings  ill  the  matter,  are  to  be  considered,  and  to  have  weight  in 
determining  the  question.  The  proof  is  made  up  of  the  declara- 
tions of  intention,  with  proof  of  other  facts,  with  which  such  intent 
can  be  connected.  Holmes  v.  Green,  7  Gra^-,  300  ;  Thorndike  v. 
Boston,  1  Met.  243,  247;  Lombard  v.  Oliver,  7  Allen,  157;  3fon- 
son  V.  Palmer,  8  Allen,  552,  and  cases  ;  lieeder  v.  Holcomh,  105 
Mass.  94  ;  Haroard  College  v.  Gore,  5  Pick.  374  ;  Lyman  v.  Fiske, 
17  Pick.  234.  Counsel  for  the  petitioners  laid  considerable  stress 
upon  the  argument,  that  Mr.  Mayhew  in  fact  remained  in  Connect- 
icut for  more  than  the  year  during  which  he  originally  proposed 
to  stay  ;  that  his  stay  was  therefore  indefinite,  and  that  a  man  may 
acquire  a  new  domicile  in  a  place,  if  he  goes  to  stay  there  for  an 
indefinite  time,  or  without  an  intention  to  return  to  his  old  resi- 
dence, at  a  fixed  and  definite  time.  But  indefiniteness  of  time,  of 
the  proposed  sta}'  in  a  place,  is  not  a  test,  in  itself,  of  domicile. 
Sears  v.  Boston,  1  Met.  253.  "  In  the  present  case,  there  was,  at 
the  time  of  the  departure  of  the  plaintiff  from  Boston,  an  intention 
to  return  and  resume  his  residence  in  Boston,  though  at  no  fixed 
period,  accompanied  with  circumstances  indicating  a  temporaiy, 
and  not  a  permanent,  residence  in  Paris" 

There  have  been  an  apparent  confusion  and  contradiction  in  the 
various  decisions  of  the  courts,  in  regard  to  the  different  questions 
concerning  the  law  of  domicile,  but  this  has  arisen,  not  from  any 
difference  of  opinion,  as  to  the  principles  of  law  involved,  but 
from  the  application  of  those  principles  to  the  peculiar  facts  of 
individual  cases.  As  no  two  cases  can  be  identical,  as  to  facts, 
so,  while  the  courts  ma}'  always  be  guided  by  the  same  general 
principles  of  law,  a  wide  difference  of  opinion  may  result,  as  to 
the  relation  of  the  law  to  the  particular  facts,  and  one  court  may 
deem  it  proper,  in  particular  cases,  to  give  a  very  strict  construc- 
tion to  the  law,  as  applicable  to  the  facts,  while  another  court  may 
be  more  liberal  in  such  construction. 

It  should  be  remembered,  in  the  consideration  of  these  questions, 
that  the  declarations  of  the  party,  as  to  his  intention,  although 
entitled  to  their  full  weight  as  competent  evidence,  are  not  con- 
clusive, but  the  acts  of  the  party  are  also  to  be  taken  into  account. 
The  "intention"  of  the  party,  is  not  merely  what  the  party  may 
think  or  believe,  but  a  legal  fact  to  be  proved  by  his  acts  and 
declarations.  For  example,  one  may  positively  testify  as  to  his 
intention  of  retaining  his  former  domicile,  and  even  may  be  entirel}^ 
honest  and  sincere  in  thinking  he  had  such  intention,  yet  that 
might  not  establish  the  fact  of  legal  "  intention  "  on  his  part ;  for, 
if  all  the  indications  of  a  homestead  being  retained  are  absent, 
und  all  the  facts  point  to  the  new  residence  as  his  home ;  if  his 


250  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

permanent  abiding  place,  his  home,  his  furniture,  his  relations, 
his  associations,  and  his  family,  are  in  tiie  new  place,  and  he  has, 
in  the  old  place,  merely  a  carpet-bag,  in  an  attic,  or  an  unused 
room  in  a  boarding-house ;  in  one  word,  if  all  the  ties  to  the  old 
place  are  withdrawn,  and  all  apparent  ties  bind  him  to  the  new 
place,  it  would  be  evident  that,  under  such  circumstances,  the  old 
domicile  is  lost.  The  question  may  be  regarded  as  whether,  to  use 
a  military  expression,  he  has  "  cut  himself  loose  from  his  base  of 
supplies,  and  has  left  no  reserve  to  fall  back  upon,"  or  has  left 
behind  him  something  to  call  him  back,  or  to  which  he  may  be  sup- 
posed to  cherish  the  design  of  returning. 

The  case  of  Holmes  v.  Green  goes,  perhaps,  as  far  as  any  case, 
towards  apparently  limiting  the  meaning  of  the  word  "residence," 
to  actual  residence  in  fact ;  and  3'et,  bearing  the  last  stated  doctrine 
in  mind,  it  is  eutirely  consistent  with  all  the  other  cases,  establishing 
only  the  said  doctrine,  that  a  "  mere  naked  declaration  of  intent  to 
reside  in  a  city  or  town,  from  which  a  i^arty  has  removed,  loithout 
any  proof  of  other  facts  ivith  tvhich  such  intent  can  be  connected,  is 
not  adequate  proof  of  inhabitancy  under  the  Constitution  and  laws 
of  this  Commonwealth."  The  court  said,  "  all  the  outward  indicia 
of  inhabitancy  pointed  to  Tiverton  as  his  place  of  residence." 

Thus  there  is  no  foundation  for  the  popular  opinion,  that  a  man 
may  elect  where  he  will  have  his  residence  and  be  taxed.  His 
residence  is  not,  necessarily,  where  he  says  it  is,  or  elects  it  to  be, 
but  where  his  home  actually  is,  with  the  '■'•indicia"  thereof. 
Ilolmes  v  Green,  7  Gray,  299.  Applying  these  principles  to  the 
facts  of  this  case  the  committee  have  no  hesitation  in  coming  to 
the  conclusion,  that  Mr.  Mayhew,  by  his  absence  in  Connecticut, 
had  not  lost  and  abandoned  his  domicile  in  Massachusetts,  and 
that  his  acts  and  declarations  are  not  only  consistent  with  the 
theory,  that  he  intended  to  retain  his  former  residence,  but  are 
ample,  and  to  the  minds  of  the  committee  conclusive,  proof  of  such 
intention.  The  committee  do  not  deem  it  necessary  to  review  all 
the  evidence  in  the  case,  and  to  show  how  the  principles  of  law 
are  applicable  to  the  different  points  thereof,  as  they  have  stated 
all  the  evidence,  in  considerable  detail,  in  order  that  the  senate 
may  have  an  opportunity  of  forming  its  own  conclusions  from  the 
facts  presented. 

This  general  distinction  may  be  observed,  in  regard  to  the  evi- 
dence presented :  that  the  declarations  and  acts  of  Mr.  Mayhew, 
point  unmistakably  to  the  conclusion  that  he  retained  his  residence 
iu  Massachusetts,  while  the  greater  part  of  the  evidence  introduced 
to  prove  that  such  residence  was  abandoned  consists  of  the  acts 
of   third  parties,  to  which  acts  Mr.  Mayhew  was  not  himself    a 


KEITH   V.    MAYHEW.       SENATE,    1876.  251 

party,  and  of  which  there  is  no  evidence  that  he  had  knowledge. 
Mr.  Mayhew's  rights  could  not,  of  course,  be  affected  by  the  un- 
authorized acts  of  other  persons,  and,  therefore,  much  of  the  evi- 
dence here  reported  was  irrelevant  and  incompetent ;  nevertheless, 
the  committee  deemed  it  best  to  hear  and  report  it,  inasmuch  as  re- 
liance was  placed  upon  it  by  the  petitioners,  and  it  was  deemed 
proper,  not  to  appear  to  prejudice  their  rights  by  a  too  strict  ap- 
plication of  the  technical  rules  of  evidence. 

As  to  the  acts  of  Mr.  Ma3hew,  or  what  the  court,  in  the  above 
quoted  case,  called  the  '•'outward  indicia  of  inhabitancy,"  there 
can  hardh'  be  imagined  a  case,  where,  when  the  actual  residence  is 
changed,  those  acts  and  "  indicia"  of  continuation  of  the  former 
residence  are  stronger  :  his  having  lived  all  his  life  in  Charlemont ; 
having  his  homestead  there  ;  his  political  and  social  and  business 
relations  being  there  ;  the  retaining  of  his  homestead,  as  to  furni- 
ture, and  the  care  of  it,  and  providing  for  it,  and  otherwise,  un- 
changed during  all  his  absence  ;  a  part  of  his  family  (his  two 
sisters)  living  there  all  the  time  ;  his  visiting  it  frequently,  and 
making  repairs  upon  it,  and  laj-ing  in  wood  and  ice  for  his  future 
use  ;  his  retaining  a  directorship  in  the  bank  there,  and  an  inter- 
est in  the  snathe  business  ;  his  temporary  object  in  going  to  Con- 
necticut to  make  money,  and  especially  to  get  some  advantage  in 
buying  cloth ;  his  retaining,  and  refusing  to  sell,  his  business 
estate,  and  other  real  estate,  in  Charlemont ;  his  retaining  his  [)ew 
in  church ;  his  arranging  with  his  partner,  bc;fore  he  left,  to  re- 
enter into,  and  his  actually  re-entering  into,  the  partnership 
business,  and  resuming  it,  as  agreed  ;  his  selling  out  nothing  but 
his  business  with  Merrick,  when  he  left,  and  retaining  all  his  other 
interests  ;  in  short,  his  retaining  his  position  and  interests  and  sur- 
roundings in  Charlemont,  in  all  respects  unchanged,  except  as  to 
his  selling  out,  with  the  right  to  resume  it,  his  interest  in  the 
clothing  business,  and  as  to  his  actuall}'  removing  to  Connecticut,  and 
all  otlier  "  outward  indicia  of  his  inhabitancy"  being  unchanged. 
Certainly,  here  the  indications  are  sufficient  confirmatory  evidence, 
to  the  declarations  of  intention.  In  addition  to  this  "outward" 
evidence,  there  are  the  declarations  of  Mr.  Mayhew  ;  his  testi- 
mou}',  in  unequivocal  terms,  at  the  hearing  before  the  committee, 
that  it  was  always  his  intention  to  retain  his  residence  in  Charle- 
mont and  to  go  to  Rockville  only  for  a  temporarj^  purpose  ;  his 
making  declarations  to  numerous  witnesses  before  and  at  the 
time  of  going  to  Rockville,  and  while  in  Rockville,  that  he  intend- 
ed to  retain  his  residence  in  Charlemont,  and  was  only  going 
temporarily   to   Connecticut,    all   which   declarations,    of    com*se, 


252  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

could  have  no  reference  to  the  present  case ;  his  signing,  and 
uiakino-  oalh  to,  a  declaration  that  he  was  a  resident  of  Massachu- 
setts  ;  his  refusing  to  be  a  bank  director  in  Rockville,  because  he 
was  not  going  to  stay  there,  and  other  declarations,  to  which  it  is 
unnecessary  here  to  refer. 

There  seems  to  be  here  abundant  evidence,  therefore,  not  only 
of  intention,  as  expressed  b}'  him,  but  also  of  acts,  to  establish  that 
his  residence  in  Massachusetts  continued  during  his  absence  in 
Connecticut. 

As  to  the  evidence  to  establish  that  he  had  lost  his  domicile  in 
Massachusetts,  very  little  of  it  is  of  a  positive  character,  and  most 
of  it,  as  has  been  said,  consists  of  the  acts  of  other  persons  than 
Mr.  Maj-hew.     Three  deeds  in  which  Mr.  May  hew  was  described 
as  of   Rockville,    are    made    by   lawyers    without   instruction   in 
this  respect,  from  Mr.  Mayhew,  and  even  if  he  had,  for  purposes 
of  making  the  deeds,  described  himself  as  living  in  Rockville,  that 
could  not  be  entitled  to  much  weight,  in  establishmg  it  as  his  inten- 
tion to  make  his  legal  domicile  in  that  town,  as  against  the  other  cir- 
cumstances.    The  assessors  in  Rockville  wrote  him  down  in  their 
list  of  resident  tax-payers,  but  Mr.  Mayhew  did  not  write  the  list, 
and  there  is  no  evidence  that  he  saw  it.     He  returned  his  watch 
and  piano  as  taxable  in  Rockville,  filling  out  the  printed  blank 
therefor,  but  it  does  not  appear  that  it  was  done  with  any  knowl- 
edge or  belief  that  he  need  not  so  do,  if  he  was  not  a  resident,  or 
any  consideration  of  that  question,  and  consequently,  as  evidence 
of  intention,  has  little  effect.     His  wife  joined  the  church  in  Rock- 
ville, testifying  that  it  was  on  account  of  her  personal  acquaintance 
with  the  minister,  and  that  she  said  to  him  that  she  was  only 
going  to  remain  a  short  time  ;  but  this  testimony  has  no  weight, 
since  Mr.  Mayhew  himself  did  not  join  the  church,  and  the  com- 
mittee, therefore,  do  not  feel  called  upon  to  decide  what  would 
have  been  the  consequences,  if  he  had  done  so,  and  whether  join- 
ing the  church  is  incompatible  with  holding  a  seat  in  the  senate. 
His  buying  a  residence  in  Rockville  is,  iinder  the  circumstances 
attending  the  purchase,  consistent  with  his  intention  to  retain  his 
domicile  in  Charlemont.     He  did  not  return  a  list  for  taxation  to 
the  assessors  of  Charlemont,  but  he  testified  that  he  had  never 
done  80  but  on^e,  and  it  is  by  no  means  a  very  rare  occurrence 
for  citizens  not  to  return  tax  lists  to  the  assessors  ;  and,  perhaps, 
if  the  not  returning  a  list  was  conclusive  evidence  of  non-residence, 
a  considerable  number  of  the  members  of  the  legislature  would  be 
obliged  to  withdraw. 

The  committee,  therefore,  upon  consideration  of  all  the  testi- 


SAMPSON   V.    WATERMAN.      HOUSE,    1876.  253 

monjMii  the  case,  and  of  the  principles  of  law  in  their  judgment 
applicable  thereto,  are  unanimously  of  opinion,  that  Mr.  Mayhew 
was  "  an  inhabitant  of  this  Commonwealth  five  years,  at  least, 
immediately  preceding  his  election." 

The  committee  recommend  that  the  petitioners  have  leave  to 
withdraw. 

[The   report  of   the   committee   was    accepted.     S.   J.,    1876, 
p.  151.] 


HOUSE  — COMMITTEE   ON   ELE  CTI  ON  S  ,  1  876  . 

Messrs.  Albert  E.  Pillsbury  of  Boston,  Chairman;  Solomon  S. 
Sleeper  of  Cambridge,  Alanson  W.  Ward  of  Bucklaucl,  Joseph  T. 
Hartt,  of  South  Scituate,  Francis  E.  Downer  of  Boston,  Charles 
C.  Capron  of  Uxbridge,  and  Herbert  A.  Dean  of  Berkley. 


George  H.  Sampson  v.  Eleasur  E.  Waterman. 

House  Document,  No.  4.     January  13,  1876.     Keport  by  A.  E.  Pillsbury, 

Chairman. 

[In  this  case,  the  petitioner  claimed  to  have  been  elected  repre- 
sentative from  the  fifth  Plymouth  district,  composed  of  the  towns 
of  Kingston  and  Duxbury,  and  alleged  an  error  in  the  count  of 
votes  for  representatives  in  the  town  of  Kingston,  and  in  the 
official  record  and  return  thereof.  The  committee  recounted  the 
votes  in  that  town  without  reporting  their  reasons  for  so  doing, 
and  found  by  the  recount  that  the  plurality  of  the  sitting  member 
was  increased  b}'  one  vote.  In  addition,  four  votes  were  found  to 
have  been  cast  for  "  E.  E.  Waterman,"  which,  in  the  unanimous 
opinion  of  the  committee,  should  be  counted  for  the  sitting  mem- 
ber, Eleasur  E.  Waterman.  If  so  counted,  his  plurality  would  be 
increased  by  five  votes  over  that  officially  returned.  The  com- 
mittee therefore  reported  that  the  petitioner  have  leave  to  with- 
draw. The  report  was  accepted.  (H.  J.,  1876,  p.  47.)  The 
report  does  not  state  sufficient  facts  to  make  it  of  value  as  a  prece- 
dent.] 


254  MASSACHUSETTS   ELECTION   CASES 1853-1885. 


Michael  Baer  et  al.,  Petitioners. 

House  Document,  No.  13.     January  19,  1876.     Report  by  A.  E.  Pillsbury, 

Chairman. 

Official  Returns  of  Election.  Presumption  of  Correctness.  The  official  returns  of 
an  election  are  j^rima  facie  correct,  and  the  burden  of  proof  is  iipon  the  petitioners, 
to  show  fraud  or  mistake. 

Same.  Fraud  in  the  Returns.  Proof  of  wilful  irregularity,  or  fraud  on  the  part  of 
returning  officers,  will  invalidate  their  return,  by  depriving  their  official  acts  of  the 
credit  to  which  they  are  otherwise  entitled. 

Same.  Evidence  to  impeach  Returns.  The  election  return  cannot  be  set  aside,  or 
the  declared  result  of  the  election  avoided,  by  proof  that  persons  entitled  to  vote 
were  denied  the  right  to  do  so,  unless  the  ward  officers,  in  denying  such  persons  the 
right  to  vote,  acted  dishonestly  or  collusively,  or  unless  it  be  proved  that  such  votes 
would  have  been  cast  against  the  sitting  members,  and  would  have  changed  the 
declared  result. 

Same.  The  return  cannot  be  set  aside,  or  the  declared  result  of  the  election 
avoided,  by  proof  that  votes  were  cast  by  persons  not  entitled  to  vote,  unless  the 
officers,  in  receiving  such  votes,  acted  dishonestly  or  collusively,  or  unless  it  be 
proved  that  such  votes  were  cast  for  the  sitting  members,  and  that  the  rejection  of 
them  would  have  changed  the  declared  result. 

Same.  The  fact  that  the  number  of  ballots  did  not  exactly  correspond  with  the 
mimber  of  names  checked  on  the  voting  list ;  that  persons,  whose  names  were 
checked,  were  denied  the  right  to  vote;  that  persons  were,  after  refusal  to  receive 
then-  votes,  allowed  to  vote  upon  presenting  written  statements  from  the  registrars 
of  voters  (it  not  appearing  what  such  statements  contained) ;  that  a  person  not  an 
election  officer  was  admitted  behind  the  rail  (it  not  appearing  that  he  was  there 
without  right,  or  for  an  improper  purpose) ,  are  not  sufficient  to  prove  wilful  x-rcg- 
ularity,  or  fraud  on  the  part  of  the  election  officers,  or  to  avoid  the  election  return. 

A.  C.  Daly  for  petitioners. 
Michael  Carney  for  silting-Tnemhers. 

The  Committee  on  Elections  to  whom  was  refej-red  the  petition 
of  ISIichael  Barr,  William  Taylor  and  Anthony  C.  Daly,  that  the 
election  of  representatives  in  the  second  Suffolk  district  be  de- 
clared null  and  void,  and  a  new  election  ordcr<^d,  having  met  the 
petitioners,  and  the  sitting  members,  and  heard  their  statements, 
evidence  and  arguments,  submit  the  following  report: 

The  petition  alleged,  — 

1.  That  the  election  was  conducted  in  a  loose  and  improper 
manner,  thereby  opening  the  door  to  collusion  and  fraud. 

2.  That  a  number  of  citizens  whose  names  were  upon  the  voting 
list,  were  denied  the  right  to  vote,  their  names  having  already  been 
vcxtcd  upon  by  other  persons. 

3.  That  there  were  more  votes  cast  than  names  checked  on  the 
voting  list. 


BARE,    PET.       HOUSE,    187G.  255 

4.  That  the  names  of  certain  persons  were  checked,  as  having 
voted,  such  persons  having  been  absent  from  the  citj'  on  the  day 
of  election. 

The  committee  held,  and  announced  to  the  parties,  that  the  in- 
vestigation would  be  governed  bj'  the  following  rules  which  are  too 
familiar  to  require  a  citation  of  authorities. 

That  the  official  returns  are  prima  facie  correct,  and  the  burden 
of  proof  is  upon  the  petitioners  to  show  the  alleged  fraud  or 
mistake. 

That  proof  of  wilful  irregularity,  or  fraud  on  the  part  of  the 
returning  officers,  will  invalidate  their  return,  by  depriving  their 
official  acts  of  the  credit  to  which  they  are  otherwise  entitled. 

That  the  return  cannot  be  set  aside,  or  the  declared  result  of  the 
election  avoided,  b}'  proof  that  persons  entitled  to  vote,  were  denied 
the  right  so  to  do,  unless  the  ward  officers  in  denying  such  persons 
the  right  to  vote,  acted  dishonestly  or  collusivel}',  or  unless  it  be 
proved  that  such  votes  would  have  been  cast  against  the  sitting 
members,  and  would  have  changed  the  declared  result. 

That  the  return  cannot  be  set  aside,  or  the  declared  result  of  the 
election  avoided,  by  proof  that  votes  were  cast  by  persons  not  en- 
titled to  vote,  unless  the  ward  officers,  in  receiving  such  votes, 
acted  dishonestly  or  collusively,  or  unless  it  be  proved  that  such 
votes  were  cast  for  the  sitting  members,  and  that  the  rejection  of 
them  would  have  changed  the  declared  result.* 

The  petitioners  expressly  admitted  that  they  were  unable  to 
prove  for  whom  the  votes,  alleged  to  have  been  improperly  rejected, 
would  have  been  cast,  or  for  whom  those  improperly  received  were 
in  fact  cast,  and  that  they  did  not  claim  that  the  declared  result 
would  have  been  changed  by  the  reception  of  the  former  or  the 
rejection  of  the  latter  class  of*  votes.     It  was  not  claimed,  that  the 

*  [Note  by  the  Editors.  The  above  rulings  of  the  committee,  are  in  accordance 
with  the  decisions  of  the  supreme  judicial  court.  In  First  Parish,  etc.,  v.  Steams,  21 
Pick.  148,  the  court  held,  in  1838,  that  it  was  not  a  valid  objection  to  an  election,  that 
illegal  votes  were  received,  if  they  did  not  change  the  majority, —  Mr.  Justice  Morton 
saying :  "  It  is  no  objection  to  an  election,  that  illegal  votes  were  received,  unless  the 
illegal  votes  changed  the  majority.  The  mere  fact  of  their  existence  never  avoids 
an  election.  This  is  so  plain  a  proposition,  that  it  needs  no  authority  to  support  it. 
It  is  the  principle  adopted,  and  acted  upon,  in  all  cases  of  contested  elections, 
whether  in  the  British  Parliament,  the  Congress  of  the  United  States,  the  legislature 
of  this  or  any  other  of  the  United  States.  The  burden  of  proof,  too,  is  always  upon  the 
persons  contesting  the  election"  (pp.  15-1,  155).  That  decision  was  affirmed  in 
Trustees  of  School  District  v.  Gibbs,  2  Cush.  39,  and  Wardens  of  Christ  Church  v. 
Pope,  8  Gray,  140.  Judge  Cooley  says  :  —  "  The  admission  of  illegal  votes,  at  an 
election,  will  not  necessarily  defeat  it,  but  to  waiTant  its  being  set  aside  on  that 
ground,  it  should  appear,  that  the  result  would  have  been  different,  had  they  been 
excluded."  Constitutional  Limitations  (4th  ed.),  p.  782,  and  see  cases  there  cited. 
McCrary  Elections,  \  444.] 


256  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

whole  number  of  votes,  improperly  received  or  rejected,  could  be 
shown  to  exceed  twent}',  and  it  was  admitted  that,  upon  the  ward 
officers'  count,  and  also  upon  the  recount  of  votes  by  the  board  of 
aldermen  of  Boston,  subsequent  to  the  election,  each  of  the  sitting 
members  was  found,  and  declared,  to  have  received  a  plurality  of 
much  more  than  twentj-  votes  over  either  of  the  petitioners. 

The  committee  thereupon  held  that  the  petitioners  in  presenting 
their  case  should  be  confined  to  evidence  tending  to  show  fraud, 
collusion,  or  irregularit}',  on  the  part  of  the  ward  officers. 

Under  this  ruling,  the  petitioners  offered  evidence,  tending  to 
show  that,  upon  the  recount  of  votes  by  the  board  of  aldermen, 
the  number  of  ballots  was  found  to  exceed  the  number  of  names 
checked  on  the  voting  list,  by  fourteen  or  thereabouts  ;  that  several 
of  the  ward  officers  left  the  ward-room  at  various  times  during  the 
day  ;  that  the  clerk  wore  a  heav}^  overcoat,  although  the  ward-room 
was  quite  warm  ;  that  a  motion  was  addressed  to  the  warden,  that 
the  clerk  be  required  to  remove  his  overcoat,  which  the  warden  did 
not  receive,  saying,  that  if  the  clerk  wished  to  wear  his  overcoat, 
he  could  do  so  ;  that  a  person  bearing  a  ballot  for  the  sitting  mem- 
bers was  challenged,  but  was  allowed  to  deposit  his  vote  after  the 
warden  had  endorsed  it ;  that  about  fifteen  persons  were  denied 
the  right  to  vote,  for  the  reason  that  their  names  were  already' 
checked  as  having  been  voted  upon  ;  that  the  clerk  in  counting 
ballots  stood  in  such  a  position  that  persons  outside  the  rail  could 
not  see  the  motions  of  his  hands  ;  that  after  the  polls  were  closed, 
a  person,  not  an  officer  of  the  ward,  was  seen  behind  the  rail; 
that  the  attention  of  the  police  and  of  the  warden,  was  called  to 
the  fact,  and  that  the  warden  spoke  to  the  person,  but  did  not 
remove  him,  and  that  a  police  officer  said  he  was  a  reporter  and 
had  a  right  to  be  there  ;  that  several  persons,  not  exceeding  sixteen, 
who  were  at  first  denied  the  right  to  vote,  for  the  reason  that  their 
names  were  already  checked,  went  to  the  office  of  the  registrars  of 
voters,  and  returned  with  written  papers  (the  contents  of  which  did 
not  appear),  upon  reading  which,  the  warden  allowed  them  to  de- 
posit their  votes  ;  that  one  person  bearing  a  ballot  against  the 
sitting  members,  was  refused  the  right  to  vote,  as  his  name  was 
already  checked  ;  that  he  went  to  the  registrars'  office,  but  was  un- 
able to  obtain  any  certificate,  and  on  his  return,  was  again  refused 
the  right  to  vote. 

The  warden  testified  that,  although  he  required  voters  to  deposit 
their  votes,  open  and  unfolded,  several  persons  in  the  course  of 
the  balloting,  deposited  folded  ballots,  notwithstanding  his  efforts 
to  prevent  it ;  that  almost  invariably,  in  such  cases,  he  immediately 
took  the  ballot  out  of  the  box,  opened  it  sufficiently  to  see  that  it 


STIMPSON   V.    BREED.       HOUSE,    1876.  257 

was  a  single  ballot,  and  returned  it  into  the  box  ;  and  that  bo  thought 
the  number  of  persons  allowed  to  vote  on  registrars'  certificates, 
as  aforesaid,  was  from  ten  to  sixteen,  most  of  them  in  the  after- 
noon. 

In  the  foregoing  facts,  the  committee  are  unable  to  find  proof  of 
wilful  irregularit}',  or  fraud,  on  the  part  of  the  ward  officers.  That 
the  number  of  ballots  did  not  exactly  correspond  with  the  number  of 
names  checked,  may  be  due  to  an  innocent  mistake,  or  omission  in 
checking,  or  to  the  fraud  of  a  person  outside  the  rail,  without 
collusion  of  the  ward  officers.  There  is  no  evidence  tending  to 
show  that  they  had  any  agency  in  it.  In  denying  the  right  to  vote 
to  persons  whose  names  were  alread}^  checked,  the  warden  onl}' 
performed  his  duty ;  and  the  fact  that  he  afterwards  allowed  them 
to  vote,  upon  written  statements  from  the  registrars,  it  not  being 
shown  what  those  statements  were,  is  no  evidence  of  fraud.  It  is 
not  shown,  that  the  person  alleged  to  have  been  improperlj^  behind 
the  rail,  had  no  right  to  be  there,  or  that  he  was  there  for  any  im- 
proper purpose,  or  that  the  officers,  in  allowing  him  there,  were 
actuated  by  any  improper  motive.  The  other  evidence  requires  no 
special  notice. 

The  committee  find  that  the  allegations  of  the  petition  are  not 
sustained,  and  recommend  that  the  petitioners  have  leave  to  with- 
draw. 

[The  report  of  the  committee  was  acciepted.     H.  J.,  1876,  p.  65.] 


John  C.  Stimpson  v.  Amos  F.  Breed. 

House  Document,  No.  30.     January  27,  1876.     Keport  by  A.  E.  PiLLSBtJRY, 

Chairman. 

Recount  of  Votes  refused.  The  fact  that  the  original  declaration  of  the  vote  for 
representative  of  a  ward,  made  by  the  warden  at  the  close  of  the  polls,  was  errone- 
ous, and  that,  thereupon,  the  ward  officers  immediately  recounted  the  votes,  finding 
seven  more  for  the  sitting  member,  and  one  less  for  the  petitioner,  than  declared,  and 
verified  the  recount  by  another  count,  is  insufficient  ground  for  a  recount  of  votes,  by 
the  house  of  representatives. 

Same.  Evidence  that  the  same  ward  ofllicers,  at  the  subsequent  municipal  elec- 
tion, made  several  errors  in  counting  the  votes  for  city  officers,  is  of  doubtful  admis- 
sibility, and  even  if  the  fact  is  proved,  is  insufficient  ground  for  a  recount  of  votes  for 
representative. 


258  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

Failure  of  Clerks  to  meet  to  compare  Transcripts  within  Time  required.  The  pro- 
visions of  the  statute,  regarding  the  meeting  of  clerks  to  examine  and  compare 
transcripts,  and  ascertain  what  persons  have  been  elected,  should  he  strictly  com- 
plied with,  and  the  authoritj'  of  such  clerks,  to  make  out  a  certificate  of  election, 
expires  with  the  time  prescribed  by  statute  for  so  doing. 

Same.  Such  Failure  invalidates  Certificate  of  Election.  The  fact  that  such  clerks 
did  not  meet,  to  examine  and  compare  transcripts,  until  two  days  after  the  expiration 
of  the  time  prescribed  by  statute,  no  unavoidable  accident  or  emergency  preventing  a 
meeting  within  that  time,  while  not  invalidating  the  election,  will  invalidate  the 
return,  and  ccrtiticate  of  the  clerks,  made  at  such  delayed  meeting. 

Asccrtuinmcnt  of  Result,  tchen  Certificate  is  invalid.  Where  the  return,  and  cer- 
tificate of  the  election  by  the  clerks,  are  invalid,  and  set  aside,  the  election  will  not 
be  avoided,  if  the  true  result  can  be  ascertained,  independently  of  the  defective  record 
and  return  ;  and,  to  ascertain  that  result,  the  ballots  cast  for  representative,  having 
been  properly  preserved,  were  recounted. 

Petition,  Evidence  competent  tinder.  Evidence  of  irregularity  in  the  election,  or 
in  the  return,  or  ascertainment  of  the  result,  will  be  considered,  although  such 
irregularity  is  not  expressly  alleged  in  the  petition. 

E.  K.  Phillips /or  pe^iYioner. 

The  Committee  on  Elections  to  whom  was  referred  the  petition 
of  John  C.  Stimpson  for  the  seat  as  representative  from  the 
eighteenth  Essex  district,  now  occupied  by  Amos  F.  Breed  of  Lynn, 
having  met  the  parties,  and  heard  their  evidence  and  the  arguments 
of  counsel,  submit  the  following  report:  The  petitioner  claimed  to 
have  been  duly  chosen  representative  from  said  district,  and 
prayed  for  a  recount  of  the  votes  cast  therein,  alleging  that  several 
varying  declarations  of  the  vote  were  made  in  ward  3,  in  the  city 
of  Lynn  (which  ward,  with  the  town  of  Swampscott,  constitutes 
said  district),  and  that  the  final  declaration  did  not  correctly  repre- 
sent the  true  vote  of  the  ward.  The  other  allegations  of  the  peti- 
tion were  waived. 

The  evidence  tended  to  show  that  the  declaration  of  the  vote 
for  representative,  made  by  the  warden  of  said  ward  immediately 
after  closing  the  polls,  was  erroneous.  The  ward  officers  recounted 
the  ballots  immediately  after  said  declaration,  and  found  seven  more 
votes  for  the  sitting  member,  and  one  less  for  the  petitioner,  than 
had  been  declared.  Thereupon,  another  recount  was  had  of  the 
votes  for  these  two  candidates  (no  discrepancy  between  the  first 
and  second  counts  having  been  discovered  as  to  the  others) ,  the 
result  of  which  confirmed  the  second  count,  and  this  was  the  result 
finally  declared.  The  sitting  member  appeared  to  have  243  votes, 
and  the  petitioner  116.  It  was  admitted  that  the  comparison  of 
the  vote  of  the  two  precincts  showed  a  plurality  of  eleven  in  the 
district  for  the  sitting  member. 

The  evidence  tended  to  show,  also,  that  following  the  state  elec- 
tion the  municipal  election  was  held  in  Lynn  in  December.  At  this 
time  the  same  persons  were  in  office  in  ward  3,  and  several  errors  in 


■ 


STIMPSON   V.    BREED.      HOUSE,    1876.  259 

the  ward  officers'  count  were  discovered,  upon  a  recount  by  the 
board  of  aldermen.  This  evidence  was  of  doubtful  admissibilit}', 
but  the  committee  saw  fit  to  receive  it. 

The  committee  were  of  opinion,  that  upon  the  foregoing  evidence, 
the  petitioner  was  not  entitled  to  a  recount.  It  is  well  settled,  that 
the  fact  of  a  close  vote,  or  that  slight  mistakes  are  made  in  counting, 
apparently  insufficient  to  affect  the  result,  will  not  justif3-  a  recount. 
Greene  v.  Br/'dgman,  ante,  p.  216  ;  Slate  v.  Green,  ante,  p.  226  ; 
Taylor  v.  Carney,  ante,  p.  228. 

It  appeared  incidentall}',  however,  that  the  clerks  of  the  two 
precincts,  composing  the  district,  did  not  meet  to  make  up  their 
return  and  certificates  as  required  by  law.  The  act  of  1874,  chap. 
376,  sects.  27,  28,  30,*  is  as  follows  :  — 

Sect.  27.  The  clerks  of  cities,  towns  and  wards,  composing  such  dis- 
tricts, shall  meet  at  noon,  on  the  day  follovving  an  election  for  represent- 
atives, at  the  place  so  designated,  and  shall  examine  and  compare  such 
transcripts,  and  ascertain  what  iiersons  have  been  elected.  If  any  error 
appears,  in  a  transcript  or  return,  the  clerks  shall  forthwith  give  notice 
thereof,  to  the  officers  required  to  make  the  return,  and  such  officers  shall 
forthwith,  in  conformity  with  the  trath,  and  under  oath,  make  a  new 
return,  which,  whether  made  with  or  without  such  notice,  shall  be  re- 
ceived and  examined  by  said  clerks,  within  two  days  after  the  time  ap- 
pointed for  the  meeting ;  and,  for  that  purpose,  the  meeting  may  be  ad- 
journed not  exceeding  two  days.  No  return  shall  be  rejected,  when 
the  number  of  votes  given  for  each  candidate  can  be  ascertained. 

Sect  28.  Such  clerks  shall,  at  such  meeting,  make  out,  under  their 
hands,  a  complete  return  of  the  names  of  all  persons,  for  whom  votes 
were  given  in  the  district,  and  the  number  of  votes  for  each  person,  and 
a  record  of  the  return  shall  be  made,  in  the  book  of  records  of  their  re- 
spective cities,  towns  and  wards,  within  four  days  after  the  day  of  the 
meeting. 

Sect.  30.  When  the  clerks  of  cities,  towns  and  wards,  composing  a 
district,  at  their  meeting  for  the  purpose,  ascertain  that  a  representative 
is  elected,  in  their  district,  they,  or  a  majority  of  them,  shall  make  out 
duplicate  certificates  thereof,  one  of  which  they  shall  deliver  into  the 
office  of  the  secretary  of  the  Commonwealth,  on  or  before  the  1st  day 
of  January  following,  and  the  other,  by  a  constable,  or  other  authorized 
officer,  transmit  to  the  person  elected,  within  ten  days  after  the  day  of 
election. 

The  day  of  election  was  Tuesday,  Nov.  2,  1875.  It  appe*ared, 
that  the  clerks  had  no  meeting  in  their  official  capacity,  or  for  the 
transaction  of  any  business,  until  Thursday  evening,  at  which  time 
they  met  at  the  store  of  Mr.  Holden,  town  clerk  of  Swampscott, 
and  the  return  and  certificates  were  then  and  there  made  out. 

♦Substantially  Pub.  Stats  ,  chap.  8,  sects.  10,  12,  14. 


260  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

There  was  nothing  to  prevent  the  meeting  of  the  clerks  at  the 
time  and  place  required  by  the  statute,  except  that  the  clerk  of  ward 
3,  in  Lynn,  was  not  aware  of  the  requirement. 

'  It  did  not  clearly  appear  that  any  place  of  meeting  had  ever 
been  designated,  under  the  act  of  1874,  sect.  26,  or  Gen.  Stats., 
cbap.  8,  sect.  11,*  but  the  evidence  showed,  that  for  several  years, 
with  possibly  a  single  exception,  the  clerks  had  met  at  the  town 
hall  in  Swampscott. 

As  this  irregularity  was  not  directly  stated  in  the  petition,  the 
question  arose,  whether  it  should  be  considered.  No  objection  was 
made  thereto,  and,  the  evidence  being  before  them,  the  committee 
held  that  they  were  bound  to  consider  it,  and  give  it  such  effect  as 
the  law  requires.  Legislative  bodies,  in  the  performance  of  such 
judicial  functions  as  belong  to  them,  are  not  bound  by  the  rules  of 
pleading  or  evidence,  except  as  they  see  fit ;  and  the  general  opin- 
ion is,  that  investigations  of  this  character,  in  which  not  only  the 
parties,  but  the  constituency,  and  indeed  the  entire  Commonwealth, 
have  an  interest,  should  be  conducted  liberally,  and  by  such  rules 
as  will  on  the  one  hand,  afford  no  protection  to  irregularity  or 
fraud,  by  which  the  will  of  the  people  may  be  defeated,  nor  on  the 
other,  permit  the  acts  of  sworn  officers  to  be  set  aside  without  good 
cause.  In  Sharon,  Gushing,  S.  «fe  J.  Cont.  Elec.  Cases,  502,  the 
house  held  that  evidence  of  a  fact  not  alleged  in  the  petition  should 
not  be  received,  but  this  decision  has  not  been  followed.  Palmer 
V.  Howe,  ante,  p.  145  ;  Pease  v.  Powell,  ante,  p.  108  ;  Mass.  Elec- 
tion Cases,  Gushing,  S.  &  J.,  545. 

The  committee  being  of  opinion  that  the  irregularity  of  the 
clerks  would  not  necessarily  invalidate  the  election,  the  question 
to  be  determined  was,  of  its  effect  upon  the  return  and  certificates. 
This  question,  which  is  of  some  importance,  was  argued  by  coun- 
sel and  has  been  carefulh'  considered. 

If  the  provisions  of  section  27  are  mandator}',  it  seems  that 
they  can  be  satisfied  only  by  strict  compliance,  and  that  a  direct 
violation  of  them  Avill  avoid  the  acts  of  officers  so  offending. 
Dwarris  on  Statutes,  610,  611  ;  Cush.  Pari.  Lato,  §  201.  It  is 
unnecessar}-  to  consider  what  the  result  would  be,  in  case  the  offi- 
cers were  prevented  by  unavoidable  accident  or  emergency  from 
complying  with  the  law,  for  the  fact  here  was  otherwise. 

The  phraseology  of  the  section,  which  is  one  element  in  the 
interpretation  of  statutes,  certainly  indicates  that  the  legislature 
intended  to  require  strict  compliance,  and  not  merely  to  indicate  a 
course  which  might  be  pursued  or  not   at   the   pleasure  of  the 

•  Substantially  Pub.  Stats.,  chap.  8,  sect.  9. 


STIMPSON   V.    BREED.       HOUSE,    1876.  261 

officers.  The  clerks  "  shall "  meet  at  uoon,  of  the  day  following 
the  election,  and  "shall"  examine  and  compare,  etc.  If  any 
error  appears,  the}"  "shall  forthwith"  give  notice  to  the  returning 
officers,  who  "  shall  forthwitli"  make  a  new  return,  which  '•  shall 
be  received  and  examined,  by  said  clerks,  within  t?70  da3-s  after 
the  time  appointed  for  the  meeting ;  and,  for  that  purpose  the 
meeting  may  be  adjourned  not  exceeding  two  days."  Then, 
apparent!}',  the  authority  to  make  a  return  and  certificate  expires. 
The  purpose,  evidenth',  is  to  require  the  result  of  the  election  to 
be  speedil}'  ascertained  and  published,  so  that  all  persons  con- 
corned  ma}'  know  the  result.  There  are  obvious  reasons  for  this 
requirement.  To  delay  the  ascertainment  and  declaration  of  the 
result  of  an  election  always  offers  an  opportunity  to  fraud  ;  and 
the  statute  affords  abundant  internal  evidence,  that  the  legislature 
had  this  in  mind,  and  intended  to  erect  an  impassable  barrier 
against  it.  If  the  clerks,  through  their  own  ignorance  or  caprice, 
can  postpone  their  meeting  until  a  day  beyond  the  time  limited  by 
law,  it  is  difficult  to  see  why  they  cannot  postpone  it  for  a  week 
or  a  month;  —  the  difference  being  only  in  degree.  One  result  of 
this  would  be,  that  the  person  elected  could  not  be  officially  noti- 
fied of  the  fact,  within  ten  days  as  the  law  requires,  and  perhaps 
not  in  season  to  take  his  seat  at  the  opening  of  the  session  ;  and 
another,  that  in  case  no  choice  was  effected  at  the  election,  the 
district,  through  failure  of  the  clerks  to  certify  the  fact  at  the 
proper  time,  might  be  deprived  partially,  if  not  wholly,  of  itls 
right  of  representation  in  the  succeeding  legislature.  See  Stats. 
1874,  chap.  376,  sects.  30,  32,  33.  A  careful  examination  of  the 
whole  statute  will  disclose  that,  while  certain  provisions  are  mani- 
festly directory,  the  language  of  all  the  sections  relating  to  tlie 
ascertainment,  declaration,  record  and  return  of  the  result  of  elec- 
tions, is  such  as  to  indicate  the  intent  of  the  legislature,  that  all 
these  provisions  should  be  strictly  complied  with. 

In  Haskell  v.  Clossoyi,  ante,  p.  233,  tlie  committee  held  that 
the  pro^'isions  of  the  sarfie  statute,  relating  to  the  preservation  of 
ballots  and  check-lists,  are  peremptory.  These  sections  (sects. 
40-44)  are  similar  in  phraseology  to  that  now  under  consideration, 
and  every  reason  for  construing  them  as  peremptory  seems  also  to 
apply  here.  It  was  also  held,  that  the  time  for  "  forwarding  re- 
turns, or  declaring  the  results  of  an  election,"  expires  with  the 
meeting  of  the  clerks  at  noon  of  the  day  following  the  election, 
or  with  the  adjourned  meeting,  held  within  two  days,  if  such  ad- 
journment is  had.  The  report  was  recommitted,  at  the  sugges- 
tion of  the  committee,  for  the  purpose  of  a  recount,  but  the  house 
seems  to  have  assented  to  the  doctrine.     Davis  v.  Murphy,  ante. 


2(32  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

p.  177,  13  to  the  same  effect,  and  tends  to  show  that,  in  the  opin- 
ion of  the  house  at  that  time,  the  Stats,  of  1863,  chap.  144,  sect. 
2,  of  which  section  41,  of  the  present  statute,  is  a  re-enactment, 
should  be  considered  mandatory,  and  that  acts  done  in  violation 
of  it  are  void.  The  same  construction  has  frequently  been  put 
upon  other  statutes  in  pari  matf-ria.  Easthampton,  Mass.  Elec- 
tion Cases,  Gushing,  S.  &  J.,  471  ;  Dana,  Id.,  551  ;  Burlington, 
Id.,  460;  Charlestown,  Id.,  518.  In  these  cases,  it  is  held  that 
statutes,  similar  to  the  act  of  1874  in  scope  and  phraseology, 
must  be  strictly  construed,  and  that  failure  to  comply  with  their 
provisions,  will  avoid  the  acts  of  the  returning  officers,  and  in 
some  cases  invalidate  the  election. 

The  sitting  member  cited  Lanesho rough  and  Neio  Ashford,  Mass. 
Election  Cases,  Cushing,  S.  &  J.,  191;  ILAlidon,  Id.,  297;  Bel- 
chertoivn.  Id.,  421;  Freeman's  case.  Id.,  547;  Townsend's  case, 
Id.,  642  ;  Plympton,  Id.,  64.'3 ;  and  C'jm.  v.  Ayer  et  als..  Id.,  674. 
AVithout  enterinij  into  a  critical  examination  of  these  cases,  it  is 
sullicient  to  say,  tliat  no  one  of  them  is  directly  in  point,  and  that 
they  tend  principally  to  the  conclusion  that  an  irregularity,  like 
that  in  question,  does  not  invalidate  an  election,  if  the  true  result 
can  by  any  means  be  ascertained,  but  that  its  effect,  if  any,  is  to 
invalidate  the  return. 

The  committee  were  of  opinion  that  the  house  ought  not  to 
sanction  a  direct  and  palpable  violation  of  the  provisions  of  this 
statute,  nor  establish  a  precedent  that  may  hereafter  afford  a 
cover  to  fraud.  It  is  apparent  that  sound  policy,  and  a  due  regard 
to  the  safety  and  purit}'^  of  elections,  alike  demand  that  the  require- 
ments of  so  important  a  statute  be  strictl}'  and  literally  obeyed. 

The  committee  have  not  been  intluenced,  however,  by  any  con- 
sideration of  what  may  occur  hereafter,  but  have  endeavored  to 
base  their  judgment  entirely  upon  sound  principles  of  conslruc- 
lion,  and  the  weight  of  authority.  And  they  were  unanimousl}'  of 
0[)iuion,  that  the  return  and  certificate  made  under  the  circum- 
stances above  stated,  in  direct  disregard  of  the  provisions  of  a 
peremptory  statute,  are  invalid,  and  must  be  set  aside.* 

•  [N'oTE  BY  THE  Editoiis.  Distinction  between  Irregularities  in  the  Action  of 
Election  Officers  and  Want  of  Jurisdiction  to  act.  The  above  case,  and  the  cases 
of  Ilaynr-s  v.  Uillis,  House,  1877,  and  Ilillman  v.  Flanders,  House,  1880,  reported 
po'.t,  live  to  \k  distinnuislicd  from  Johnson  v.  Cole,  ante,  p. 36,  Beck  v.  Plummer,  ante 
p.  10,  Ncwcomh  V.  Holmes,  ante,  p.  57,  Tohei/  v.  Kniff,  ante,  p.  60,  and  similar  cases, 
in  which  it  was  held,  that  mere  irregulai-ities  in  the  conduct  of  the  election,  or  in  the 
manner  of  makinj,' the  transcript  or  return,  not  affecting  the  result,  or  raising  any 
presumption  of  fraud,  will  not  invalidate  the  election.  It  is  thoroughly  settled  by 
innumerable  decisions  of  the  courts  that  such  irregularities  arc  immaterial,  unless 
the  result  of  the  election  is  changed  by  them.    Ex  parte  Strong,  20  Pick.  484.     Com- 


STIMPSON   V.    BREED.      HOUSE,    1876.  263 

As  the  rule  is  well  established,  that  an  election  shall  not  be 
avoided  if  the  true  result  can  be  ascertained,  independently  of  the 

mojiwealth  v.  Smith,  132  Mass.  289;  Cooley  Constitutional  Linoitatlons  (4th  ed.), 
p.  778;  McCrary  Elections,  §\J  122-129,  and  cases  there  cited. 

But  in  the  above  case,  and  the  subsequent  cases  cited  above,  the  question  was 
not  one  of  irregularity  in  the  manner  of  the  performance  of  their  duties  by  election 
officers,  but  whether  the  time  limited  by  statute  for  preparing  a  certificate  of  elec- 
tion, which  should  be  the  official  and  best  evidence  of  the  result,  having  expired,  a 
certificate  made  subsequently  should  be  regarded  as  official.  The  committee  did  not 
recommend  the  avoidance  of  an  election,  or  a  return,  on  account  of  any  irregularity 
in  its  conduct  or  form,  but  refused  to  regard  as  official  a  certificate  of  election  given 
by  officers  who,  at  the  time  of  meeting,  might  be  said  to  have  had  no  statutory 
authority  to  make  it.  In  other  words,  the  question  was  not  of  hregularity  in  their 
action,  but  oi  jurisdiction  at  the  time  to  act  officially  at  all. 

Certificate  in  prima  facie  Evidence  of  Election  only  when  Official.  The  official 
certificate  of  election  is  conclusive  evidence  of  the  fact,  in  any  collateral  proceeding, 
and  prima  facie  evidence  in  a  proceeding,  like  an  election  controversy,  to  try  the 
title  to  the  office.  It  entitles  the  holder  to  be  qualified  for  the  office,  and,  as  ])rima 
_/acte  evidence  of  title  to  it,  confers  the  right  of  office  upon  him,  until  that  right  is 
impeached  in  an  election  controversy.  McCrary,  Elections,  §§  219-2.23 ;  Cooley  Con- 
stitutional Limitations  (4th  ed.),  p.  789;  Commonwealth  v.  Smith,  132  Mass.  289; 
Kerr  v.  Trego,  47  Penn.  St.  292 ;  Hadley  v.  Albany,  33  N.  Y.  603;  Hartt  v.  Harvey,  32 
Barb.  (N.  Y.)  55;  People  v.  Miller,  16  Mich.  56.  But  to  have  this  important  effect, 
the  certificate  must  be  official ;  that  is,  given  by  officers  authorized  by  law  to  make 
it.  The  only  authority  to  make  it  is  conferred  by  statute.  The  clerks  of  towns,  in 
comparing  transcripts  of  returns  of  votes,  and  certifying  the  result  of  the  election, 
have  no  other  authority  or  jurisdiction  than  that  given  by  the  statutes  referred  to  in 
the  above  report.  "  It  cannot  be  necessary  to  prove  that  a  ministerial  officer  can  do 
no  valid  act,  but  what  he  is,  cither  expressly  or  by  necessarj'  implication,  author- 
ized to  do."  Vose  v.  Deane,  7  Mass.  280,  282.  Where  a  statute,  conferring  authority 
upon  clerks  to  ascertain  the  result  of  the  election,  and  issue  a  certificate  to  the  per- 
son elected  as  representative,  expressly  states  and  limits  the  time  within  which  such 
action  must  be  taken,  any  action,  on  their  part,  after  that  time  has  expired,  is  out- 
side of  the  statute  authority,  and  consequently  unofficial.  The  principle  is  stated  in 
Potter's  Dwarris  on  Statutes,  p.  224,  note  :  — "  In  all  cases  .  .  .  where  the  authority 
to  proceed  is  conferred  by  statute,  and  where  the  manner  of  obtaining  jurisdiction  is 
prescribed  by  the  statute  .  .  .  the  mode  of  proceeding  directed,  is  mandatory  and 
m'.?st  be  strictly  complied  with,  or  the  proceeding  will  be  utterly  void.  The  true 
distinction  is  this :  Where  the  provision  of  the  statute  is  the  essence  of  the  thing 
required  to  be  done,  and  bij  ivhich  jurisdiction  to  do  it  is  obtained,  it  is  mandatory  ; 
Otherwise,  when  it  relates  to  form  and  manner,  and  when  an  act  is  incident,  or  after 
jurisdiction  has  been  obtained,  it  is  directory."  And  see  Sedgwick  Construction  of 
Statutes,  pp.  329-331 ;  Macy  v.  Raymond,  9  Pick.  285.  So,  in  Michigan,  the  court 
held  that  a  count  not  made  under  the  authority  of  the  statute  was  not  presumptive 
evidence  of  the  result  of  the  election,  but  was  void,  —  Judge  Campbell  saying :  "  For 
purposes  of  convenience,  the  law  has  provided  that  the  action  of  the  inspectors,  when 
conforming  to  the  statute,  shall  stand  as  presumptive  evidence  of  their  contents. 
But  evidence  by  the  count  of  any  one,  not  made  officially  .  .  .  would  be  hearsay  al; 
best.  It  would  be  contrary  to  public  policy  to  allow  any  evidence  whatever,  based 
upon  a  counting  made  in  direct  violation  of  law,  to  be  received  at  all.  The  object  of 
the  statute  is  to  prevent  tampering  with  the  ballots,  and  inasmuch  as  it  would  be 
impossible  to  determine  with  certainty,  whether  any  fraud  had  been  committed  in 
any  unauthorized  counting,  there  can  be  no  propriety  in  allowing  any  evidence  rest- 
ing on  it."  Keeler  v.  Robertson,  27  Mich.  116,  129.  The  case  is  somewhat  similar  to 
those  involving  the  right  of  assessors  to  make  an  assessment,  after  the  exiiiration 
of  the  time  provided  by  law.    In  the  opinion  of  the  justices  of  the  sui)reme  court, 


264  MASSACHUSETTS    ELECTION   CASES  —  1853-1885. 

defective  record  or  return,  the  committee,  upon  coming  to  the 
above  conclusion,  proceeded  to  recount  the  ballots  cast  for  repre- 

that  assessors,  after  the  general  assessment  of  a  tax,  had  no  power  to  assess  a  tax 
on  a  person  in  order  to  qualify  him  to  vote,  the  justices  observe  the  distinction 
between  mere  irregularity  in  the  assessment  of  a  tax,  and  want  of  authority  to  assess 
it.  "This  distinction,  wc  think,  is  manifest.  In  the  one  case,  the  tax  is  an  actual 
tax,  although  it  may  be  informal,  irregular,  and  even  illegal,  and  of  which,  perhaps, 
he  might  avoid  the  payment,  should  he  elect  to  contest  it;  in  the  other,  it  is  a  mere 
semblance  of  a  tax,  purporting  to  be  assessed,  by  persons  wholly  unauthorized,  and 
thus  is  a  proceeding  utterly  void,  and  from  which  no  right  can  be  derived."  Opinion 
of  Justices,  18  Pick.  575,  578.  And  see  Eames  v.  Johnson,  4  All.  382 ;  Torrey  v.  Mill- 
bury,  21  Pick.  64.  So,  in  Davis  v.  Murphy,  ante,  p.  177,  and  Haskell  v.  Classen,  ante, 
p.  233,  the  house  of  representatives  held,  that  the  aldermen  had  no  authority  to 
recount  votes,  after  the  expiration  of  the  time  provided  by  statute  for  such  recount. 

Place  of  Meeting  of  the  Clerks  ?iot  essential  to  the  Validity  of  their  Action.  If, 
however,  the  clerks  meet  within  the  time  fixed  by  law,  so  that  they  have  jurisdic- 
tion to  act  officially,  any  irregularities  in  their  manner  or  place  of  acting,  should  be 
regarded  like  other  mere  irregularities  in  election  proceedings,  and  would  not  neces- 
sar>"y  invalidate  their  action.  So,  it  has  been  held,  that  the  meeting,  at  a  place  not 
designated,  is  an  irregularity,  but  if  held  within  the  required  time,  in  the  absence  of 
fraud,  or  proof  that  the  result  was  affected,  will  not  invalidate  the  proceeding,  where 
"  the  duties  of  the  return  judges  were  so  interfered  with  by  a  disorderly  crowd,  that 
they  could  not  l)e  performed  at  the  usual  place."  Hulseman  v.  Rems,  41  Penn.  St. 
396.  In  McCraw  v.  Uarralson,  4  Coldwell  (Tenn.),  34,  it  was  decided,  that 
"  where  the  returns  of  the  election  were  made  to  the  court  house,  where  the  law  re- 
quired that  they  should  be  counted,  but  the  court  being  in  session,  the  votes  were 
counted  in  a  private  house  la  the  town,  this  was  a  sufficient  compliance  with  the 
requirement  of  the  statute,  and  constitutes  no  ground,  in  the  absence  of  fraud  or 
misconduct  in  comparing  the  polls  and  counting  the  votes,  for  setting  aside  the  elec- 
tion." In  Tobey  Y.King,  ante, p  60,  the  house  of  representatives  Ae^ii,  that  the  meeting 
of  the  clerks,  in  a  place  other  than  that  designated,  while  unjustifiable,  would  not, 
unless  the  result  of  the  election  was  thereliy  affected,  invalidate  their  action. 

InvaUdating  the  Certificate  will  not  affect  the  Election  if  the  Result  can  be  ascer- 
tained by  other  Means.  If  the  proper  officers  neglect  to  make  the  required  certifi- 
cate, or  fail  to  make  it,  as  required  by  statute,  so  that  it  is  invalid,  the  election  is  not 
necessarily  alL'ctcd  by  the  neglect.  There  is,  merely,  no  official  evidence  of  the 
result  of  the  election,  —  and  that  the  popular  will  may  not  be  defeated,  or  any  person 
deprived  of  his  rights,  the  result  will  be  ascertained,  if  possible,  hy  other  evidence. 
As  stated  by  Judge  McCrary,  in  reporting  for  the  committee  in  the  election  contro- 
versy in  Congress  of  McKenzie  v.  Braxton,  Smith  Cong.  Election  Cases,  pp.  19,  25: 
"Of  course,  the  returns  of  an  election  must  be  certified  by  the  proper  officers.  If 
not  so  certilied  they  prove  nothing,  and  when  offered  in  evidence,  if  objected  to, 
they  must  be  rejected.  It  does  not,  however,  necessarily  follow  that  the  vote  cast 
at  such  an  election  is  lost,  or  thrown  away.  An  uncertified  return  does  noi  prove 
what  the  vote  was,  —  that  is  all.  The  duly  certified  return  is  the  best  evidence,  but 
if  it  be  shown  that  this  does  not  exist,  wc  doubt  not,  secondary  evidence  would  be 
admissible  to  prove  the  actual  state  of  the  vote.  The  failure  of  an  officer,  either  by 
mistake  or  design,  to  certify  a  return,  should  not  be  allowed  to  nullify  an  election, 
or  to  change  a  result,  if  other  and  sufficient  and  satisfactory  evidence  is  forthcom- 
ing to  show  what  the  vote  actually  was."  And  see,  McCrary  Elections,  §  171; 
Cooley  Constitutional  Limitations  (4tli  ed),  p.  789.  In  the  case  of  Hay7ies  v.  Hillis, 
House,  1877,  po%t,  the  committee  considered  that,  under  such  circumstances,  the 
certificate  being  invalidated,  the  best  evidence  of  the  result  remaining,  was  the  town 
record  of  the  vote,  rather  than  the  ballots.  That  is,  the  committee  did,  what  the 
clerks  ought  to  have  done,  within  the  statute  time,  canvassed  not  the  votes,  but  the 
record  of  the  votes.    Anil  this  course  seems  to  be  approved  by  Chief  Justice  Shaw, 


STIMPSON   V.    BREED.       HOUSE,    1876.  265 

senlative  in  said  district,  wbicli  were  proved  to  have  been  properly 
sealed  and  preserved,  and  which  were  produced  before  the  ccm- 
mittee,  by  the  officers  to  whom  their  custody  belongs  ;  and  the 
result,  which  was  as  follows,  showed  that  the  sitting  member 
received,  in  the  district,  a  plurality  of  eleven  votes  over  the 
petitioner :  — 

In  Swampscott : 

Amos  F.  Breed  had 27  votes. 

John  C.  Stimpsou  had 143     " 

Samuel  C.  Pitman  had 77     " 

Abel  Curtis  had 2    " 

in  Ex  parte  Strong,  20  Pick.  484,  who  says  :  "  If  no  return,  or  an  imperfect  one,  l)e 
received,  let  it  be  supplied,  or  corrected,  by  a  reference  to  the  original  record,  if  any 
there  be"  (p.  492.)  In  Congress,  when  there  is  no  valid  certificate  of  an  election, 
the  practice  is,  to  go  to  the  returns  upon  which  the  certificate  should  have  been 
based.  "  The  failure  or  refusal  of  the  proper  officer  to  issue  a  certificate  of  election, 
would  only  render  it  necessary  for  the  house  to  go  back  to  the  returns  and  poll- 
books,  and  ascertain,  if  possible,  from  them,  or  from  any  competent  and  sufficient 
evidence,  who  was  actually  elected,  and  award  the  seat  accordingly,"  says  Judge 
McCrary,  in  the  report  in  Boyden  v.  Shober,  2  Bart.  Cong.  Election  Cases,  904,  906. 
And  see,  Spauldimj  v.  Mead,  Clark  &  Hall  Cong.  Election  Cases,  157;  Richards' 
Case,  lb.,  95;  Clements'  Case,  1  Bart.  Cong.  Election  Cases,  366;  Giddings  v. 
Clark,  Smith  Cong.  Election  Cases,  91.  It  is  to  be  remembered,  however,  that  until 
recently  in  Massachusetts,  and  to  the  present  time,  in  most  of  the  states,  ballots 
were  not  preserved,  so  that  the  only  evidence  of  the  election,  back  of  the  certificate, 
was  the  return  or  record.  If  the  certificate  be  regarded  as  the  primary  evidence  of 
the  result,  in  its  absence,  from  invalidity,  secondary  evidence  is  necessary  to  prove 
the  result  of  the  election.  And,  as  there  are  no  degrees  in  secondary  evidence, 
recognized  in  Massachusetts,  any  evidence  tending  to  prove  who,  in  fact,  was 
elected,  may  be  admitted.  "  When  the  source  of  original  evidence  is  exhausted, 
and  resort  is  properly  had  to  secondary  proof  .  .  .  (the  fact)  may  be  proved,  like 
any  other  fact,  by  indirect  evidence.  The  admissibility  of  evidence,  offered  for  this 
purpose,  must  depend  upon  its  legitimate  tendency,  to  prove  the  facts  sought  to  be 
proved,  and  not  upon  the  comparative  weight  or  value  of  one  or  another  form  of 
proof.  I'lio  jury  will  judge  of  its  weight,  and  may  give  due  consideration  to  the 
fact,  that  a  less  satisfactory  form  of  proof  is  offered,  while  a  more  satisfiictory  one 
exists,  and  is  withheld,  or  not  produced,  when  it  might  have  been  readily  obtained. 
But  theie  are  no  degrees  of  legal  distinction  in  this  class  of  evidence;"  —  Mr. 
Justice  Wells,  in  Goodrich  v.  Weston,  102  Mass.  362,  364;  Stetson  v.  Gulliver,  2 
Cush.  494.  The  committee  had,  therefore,  the  right  to  determine,  as  they  did,  what 
evidence  should  be  received  to  prove  the  result  of  the  election,  the  record  of  the 
votes  in  each  town,  or  the  votes  themselves.  The  question  was  addressed  to  their 
discretion,  which  of  the  two  kinds  of  evidence  was  entitled  to  most  weight,  in  prov- 
ing the  fact.  While  it  is  for  the  committee  to  determine,  under  the  circumstances 
of  each  case,  which  is  the  better  evidence  of  the  result,  the  safer  course  as  a  general 
rule  would  seem  to  be,  to  resort  to  the  town  records  of  the  vote  from  which  the 
certificate  should  have  been  made,  rather  than  to  the  ballots  cast  in  the  election. 
To  recount  the  liallots,  merely  because  the  certificate  is  unofficial  and  void,  is  not 
only  to  do  what  the  clerks  in  making  the  certificate  had  no  authority  to  do,  but 
makes  the  ascertainment  of  the  result  depend  upon  the  proper  and  honest  preserva- 
tion of  ballots,  while  an  official  record  exists  in  each  town,  made  at  the  time  of  the 
election,  from  which  the  result  can  easily  be  ascertained.] 


266 


MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 


In  Ward  3,  Lynn . 


Amos  F.  Breed  had  . 
John  C.  Stimpson  had 
Samuel  C.  Pitman  had 
Abel  Curtis  had 


Amos  F.  Breed,  . 
John  C.  Stimpson, 
Samuel  C.  Pitman, 
Abel  Curtis, 


Total  Vote  of  the  District 


243  votes. 

116 

(( 

177 

«c 

4 

i( 

270 

, 

259 

• 

254 

. 

6 

The  committee,  therefore,  recommend  that  the  petitioner  have 
leave  to  withdraw. 

[The   report  of  the   committee  was   accepted.     H.  J.,    1876, 
p.  102.] 


Edward  J.  Jenkins  v.  George  A.  Shaw. 


House  Document,  No.  58.     February  9,  1876. 

BURY,  Chairman. 


Report  by  A.  E.  Pills- 


Eligibility  of  Representative.  Inhabitaney.  A  person  is  an  inhabitant,  within 
the  meaning  of  the  Constitution  in  prescribing  the  qualifications  of  members  of  the 
legislature,  of  that  place  where  he  actually  dwells,  or  has  his  home;  and  whether 
be  intends  so  or  not,  he  cannot  have  a  domicile  for  political  purposes  in  one  place, 
and  his  actual  home  in  another  place. 

Same.  Intention.  If  a  person  leaves  one  place  of  residence,  and  becomes  an 
actual  resident  in  another  place,  and  such  latter  residence  is  not,  in  fact,  temporary, 
the  latter  place  becomes  his  domicile,  and  his  political  rights  and  duties  attach  to 
him  there,  whether  he  so  intends  or  not. 

Same.  A  change  of  domicile  docs  not  depend  so  much  upon  the  intention  to 
remain  in  the  new  place,  for  a  definite  or  indefinite  period,  as  upon  the  fact  that  it 
is  without  a  definite  intention  to  return ;  and  even  an  intention  to  return  at  a  remote 
or  indefinite  period  may  be  controlled  by  other  circumstances,  establishing  the  fact 
of  domicile  in  the  new  place. 

Same.  The  intention  to  remain,  is  to  be  distinguished  from  mere  declaration  of 
such  intention;  as  intention  is  a  fact  to  be  proved  by  evidence,  but  declaration  of 
intention  is  merely  evidence  tending  to  prove  such  fact,  liable  always  to  be  con- 
trolled by  other  evidence,  and  being  but  one  element  in  determining  the  fact,  and 
where  the  acts  of  the  person  are  inconsistent  with  his  declarations,  the  intention  must 
be  ascertained  as  a  fact,  upon  the  whole  evidence. 

Same.  Eridcnce.  Where  a  person  removed  his  family  in  1867,  from  ward  5, 
Boston,  from  which  ward  he  was  elected  a  representative  in  1875,  and  lived  in 
Brookline,  Mass.,  with  relatives  for  six  years  and  afterwards  stayed  for  a  time  in 


JENKINS   V.    SHAW.      HOUSE,    1876.  267 

Melrose,  and  from  June,  1874,  lived  continuously  with  his  family  in  a  house  in 
Dorchester,  leased  by  his  mother-in-law,  although  he  always  intended  to  retain  his 
domicile  in  ward  5  for  political  purposes,  and,  to  carry  out  this  intention,  slept  in  a 
hotel,  or  lodging-house  there,  April  30,  1874,  and  occasionally  after  that,  leaving  a 
portmanteau  there  for  some  months,  and  had  himself  assessed,  and  his  name 
placed  on  the  voting  list  in  that  ward,  and  on  April  30,  1875,  again  slept  in  that 
house,  saying  to  the  landlord  that  he  intended  to  continue  his  residence  there;  and 
in  June,  1875,  took  a  room  in  another  place  in  that  ward,  retaining  the  key,  but 
keeping  no  luggage  or  effects  in  the  room,  and  not  occupying  it  for  more  than  one  or 
two  nights,  it  was  held,  that  he  had  ceased  to  be  an  inhabitant  of  that  ward,  and 
was  ineligible  to  election  from  it. 

Same.  The  fact  that  a  person  is  assessed,  as  resident  of  a  ward,  is  entitled  to 
little,  if  any,  weight,  on  the  question  of  his  residence,  where  the  assessors  are 
accustomed  to  assess  persons  as  residents  of  the  ward  in  which  they  claim  to  reside, 
or  in  which  the  assessors  are  told  such  persons  reside,  and  to  make  no  further  in- 
quiry as  to  their  residence. 

Practice.  Petition  for  Seat  by  ineligible  Person.  Action  can  be  taken,  upon  a 
petition  for  a  seat  as  representative,  alleging  the  ineligibility  of  the  sitting  member, 
although  the  contestant  is  himself  ineligible  to  the  office. 

Charles  J.  ^^ooks,  for  petitioner. 
Benjamin  Dean  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Edward  J.  Jenkins,  for  the  seat  as  representative  from  the  fifth 
Suffolk  district,  now  lield  by  George  A.  Shaw,  having  met  the 
petitioner  and  the  sitting  member,  and  heard  their  evidence,  and 
the  arguments  of  counsel,  submit  the  following  report : 

The  petition  alleged  that,  at  the  time  of  the  election,  and  for 
one  year  next  preceding,  Mr.  Shaw  was  not,  and  had  not  been,  an 
inhabitant  of  the  district  for  which  he  was  chosen,  ami  that  the 
petitioner  received  the  next  highest  number  of  votes  at  said  elec- 
tion ;  and  prayed  that  the  seat  be  declared  vacant,  and  that  it  be 
given  to  the  petitioner. 

From  the  testimony  of  numerous  witnesses  which  the  commit- 
tee deem  it  unnecessary  to  state  in  detail,  the  following  facts  ap- 
peared :  — 

At  the  time  of  the  election,  —  Nov.  2,  1875,  —  ward  5,  in  the 
city  of  Boston,  constituted  the  fifth  Suffolk  representative  district. 
That  ward  was  established  in  1865,  part  of  the  territory  then  in- 
corporated into  it  having  been  previously  included  in  ward  8. 
The  boundary  lines,  established  in  1/SG5,  continued  the  same  until 
a  time  subsequent  to  the  election  of  Nov.  2,  1875,  and  prior  to  the 
city  election  held  Dec.  14,  1875.  When  the  new  division  of 
wards  was  made,  part  of  the  territory  of  ward  5  was  incorporated 
into  the  ward  now  numbered  12.  Mr.  Shaw  has  been  assessed 
and  has  paid  a  poll  and  personal  property  tax  in  some  part  of 
Boston  continuously  since  1839  ;  and  since  the  establishment  of 
wf.rd  5,  in  18G5,  he  has  been  assessed  and  registered  as  a  voter, 


2G8  MASSACHUSETTS    ELECTION   CASES  —  1853-18S5. 

iu  that  ward.  Prior  to  that  time  he  was  for  several  3'ears 
assessed  in  ward  8,  as  a  resident  of  the  same  territory  afterward 
incorporated  into  ward  0.  He  was  never  assessed  or  registered  in 
ward  IG,  the  place  of  his  alleged  actual  residence  during  the  year 
preceding  the  election.  He  was  a  representative  from  ward  8,  in 
1859  and  ISGO  ;  senator  from  the  district  composed  of  wards  8,  9 
and  10,  in  1801  and  1863;  representative  from  ward  5,  in  1866, 
1872  and  1874  ;  and  a  member  of  the  common  council  of  the  city 
of  Boston,  from  ward  5,  iu  1873,  1874  and  1875.  He  was  also 
returned  as  elected  to  that  body,  from  the  n-ew  ward  12,  in  Decem- 
ber 1875.  In  1873,  his  seat  in  the  council  was  unsuccessfully 
contested  for  non-residence  ;  and  a  similar  contest  upon  the  same 
ground  is  now  pending  in  that  body.  He  has  uniformly  claimed, 
and  frequently  declared,  his  legal  residence  or  domicile  to  be  in 
ward  5,  from  its  creation  in  18C5,  to  the  time  of  the  state 
election  in  1875,  mingling  actively  in  the  political  affairs  of  that 
ward,  and  voting  there  at  nearlj-  every  election  during  that  period. 
Several  past  and  present  members  of  the  board  of  assessors  testi- 
fied that  their  custom  has  been,  to  assesss  a  person  as  a  resident 
of  the  ward  in  which  he, claimed  to  reside,  or  in  which  they  might 
be  told  that  he  resided  ;  and  that,  having  ascertained  the  fact  in 
this  manner,  they  made  no  further  inquiry  as  to  his  i)lace  of  resi- 
dence. It  appeared,  also,  that  persons  are  registered  as  voters,  if 
at  all,  in  the  wards  in  which  they  are  assessed.  It  did  not  clearly 
appear  whether  Mr.  Shaw  ever  had  an  actual  place  of  residence  in 
ward  5,  although  it  was  admitted  that  he  once  had  a  legal  domici  e 
there  whi'.-h  involves  the  fact  of  residence. 

He  has  a  farail}-,  consisting  of  his  wife,  a  son  and  a  daughter. 
Neither  of  his  children  is  married,  and  both  live  with  their  parents. 
From  18CG,  or  thereabouts,  until  1873,  his  family  was  "  temporarily 
staying  in  Brookline"  (to  use  his  own  language)  at  the  house  of 
Mr.  and  Mrs.  Sawin,  the  father  and  mother  of  Mrs.  Shaw.  Mr. 
Shaw  testified  that  they  were  in  feeble  health,  and  needed  the  care 
and  assistance  of  his  wife.  During  their  stay  in  Brookline,  Mr. 
Sawiu  died.  In  1873,  Mr.  Shaw's  family  and  Mrs.  Sawin  were 
"temporarily  staying"  in  Melrose.  It  did  not  appear  what  Mr. 
Shaw's  actual  place  of  residence  was,  or  whether  he  was  apart  from 
his  family  during  this  period. 

On  the  30th  day  of  April,  1874,  Mr.  Shaw,  accompanied  "by  his 
son,  went  to  a  hotel  or  lodging-house  kept  by  one,  Atwood,  in  Hay- 
ward  Place,  in  ward  5,  and  engaged  a  room  for  the  night,  saying 
to  Atwood,  that  he  desired  to  make  his  residence  there,  and  telling 
him,  if  the  assessors  came  and  inquired,  to  say  that  he  resided 
there.     He  had  with  him  a  small  portmanteau,  but  no  other  lug- 


JENKINS   V.    SHAW.      HOUSE,    1S76.  2G9 

gage.  He  passed  the  night  there,  occupying  the  same  room  with 
his  son.  The  son  passed  two  or  three  succeeding  nights  at  this 
house,  and,  during  the  month  of  Ma}",  Mr.  Shaw  passed  two  or 
three  nights  there  not  in  succession.  It  did  not  appear  whether 
he  even  took  any  meals  there.  The  portmanteau  was  found,  locked 
in  a  closet,  some  time  subsequent  to  June.  Mr.  Shaw  was  in  the 
house,  in  the  language  of  a  witness,  "  sometimes  a  week,  sometimes 
once  a  week,  and  sometimes  less,"  during  some  part  of  1874,  paying 
for  sych  time  as  he  occupied  a  room  ;  but  it  did  not  appear  that  he 
was  ever  there  in  November,  or  subsequently,  until  as  hereafter 
stated.  No  member  of  Mr.  Shaw's  family  was  ever  in  the  house 
except  his  son  as  aforesaid. 

About  the  first  of  June,  1874,  Mr.  Shaw  negotiated  with  one 
Newliall,  for  a  lease  of  a  house  in  Wales  Street  in  ward  IG,  known 
as  the  Dorchester  district,  sa^-ing  that  he  intended  to  go  out  there 
to  live.  They  failed  to  agree  on  terms.  Mr.  Shaw  suggested  to 
Newhall  that,  as  he  was  a  member  of  the  city  government,  his  influ- 
ence might  be  valuable  in  that  neighborhood  ;  but  the  negotiation 
failed.  About  the  same  time,  or  immediately  afterward,  Mr. 
Shaw's  family,  with  Mrs.  Sawin  and  her  son,  Francis  R.  Sawin, 
removed  to  a  house  on  said  Wales  Street  near  the  one  negotiated 
for  with  Newhall,  where  the}'  have  since  continuously  resided. 
The  house  was  U?ased  by  the  owner  to  Mrs.  Sawin,  for  three  years 
from  June  1,  1874.  It  was  not  shown  by  whom  the  rent  has  been 
paid.  Mr.  Shaw  testified,  that  this  removal  was  on  account  of  the 
delicate  health  of  his  wife,  and  of  Mrs.  Sawin  who  is  old  and  infirm, 
that  they  might  have  the  care  and  advice  of  Dr.  ShurtlefF,  who  then 
lived  near  by,  but  who  died  soon  after  their  removal  thither. 

On  the  30th  da}'  of  April,  1875,  between  ten  and  eleven  o'clock, 
p.  M.,  Mr.  Shaw  went  again  to  the  house  of  Atwood  in  Ha^'ward 
Place.  He  registered  his  name,  engaged  a  room  for  the  night,  and 
paid  for  one  night's  lodging,  saying  to  Atwood  that  he  wished  to 
stay  there  and  make  it  his  residence,  —  to  continue  his  residence 
there.  He  was  alone,  and  without  luggage.  He  was  assigned  a 
room  for  the  night,  retired,  and  was  never  seen  there  afterward. 

After  that  night,  the  room  was  let  to  other  transient  guests,  as 
usual. 

In  1874,  Mr.  Shaw's  son  and  young  Sawin,  were  assessed  as 
residing  at  Atwood's  house,  in  Hayward  Place.  In  1875,  they 
were  assessed  as  residing  in  Wales  Street,  Dorchester. 

Early  in  June,  1875,  Mr.  Shaw  went  to  the  house  of  one  Lee, 
Nos.  142  and  144  Lincoln  Street,  then  in  ward  5,  but  now  in  the 
new  ward  12,  and  engaged  a  room,  saying  to  Lee  that  he  wished 
to  make  it  his  residence.     He  was  given  a  key,  which  he  has  since 


270  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

retained.  lie  had  no  luggage  or  effects  with  him  at  that  time, 
and  Lee  never  saw  anything  there,  belonging  to  Mr.  Shaw,  "ex- 
cept once  in  a  while  a  few  parcels."  Lee  saw  nothing  more  of 
him  there  until  Januar}',  1875.  Mrs.  Lee  testified,  however,  that 
she  had  heard  of  his  being  there,  occasionally,  and  Mr.  Shaw  testi- 
fied that  he  had  slept  there,  —  how  frequently  did  not  appear  ;  that 
he  had  occasionally  taken  meals  in  the  saloon  on  the  first  floor, 
and  that  he  kept  some  clothing  there.  The  ground  floor  was  occu- 
pied by  Lee,  as  a  retail  liquor  saloon  and  restaurant,  and  his 
family  lived  above.  The  room  engaged  by  Mr.  Shaw  was  in  the 
half-story  next  the  roof.  It  was  uncarpeted  but  contained  a  bed- 
stead, wash-stand,  table  and  two  chairs.  The  other  room,  on  that 
floor,  was  occupied  by  a  servant-girl  named  Doherty.  No  member 
of  Mr.  Shaw's  famil}"  was  ever  in  the  house,  so  far  as  appeared. 
After  he  had  engaged  his  room,  it  was  occasionally  occupied  by 
Lee,  and  once  by  one  of  his  guests.  No  distinct  agreemont  was 
made,  as  to  what  price  should  be  paid  for  the  room,  and  Mr.  Shaw 
has  never  paid  an3-thing  for  it,  although  Lee  testified  that  he  was 
owing  Mr.  Shaw  something  when  he  came  there,  and  the  arrange- 
ment was  that  he  should  pa}^  what  was  fair.  This  room  is  claimed 
by  Mr.  Shaw,  as  his  present  residence,  and  he  has  so  declared  it 
since  June,  1875. 

It  appeared  by  the  testimony  of  numerous  witnesses,  residing 
on  Wales  Street,  Dorchester,  and  in  that  neighborhood,  that 
since  the  removal  of  Mr.  Shaw's  family  and  Mrs.  Sawin  thither 
in  June,  1874,  he  himself  has  been  continuously  a  member  of  the 
family,  and  an  actual  occupant  of  the  house.  Several  witnesses 
testified  in  the  most  positive  manner,  that  he  has  lived  there,  for  a 
year  and  a  half  or  more.  In  the  language  of  one  witness,  "  He 
lives  on  Wales  Street  with  his  wife  and  family,  as  much  as  I  live 
on  Seaver  Street."  During  the  entire  period  he  has  been  seen, 
with  great  frequency  and  regularity,  in  the  cars  of  the  Highland 
Street  Railway,  coming  into  town  from  ten  minutes  before  eight 
to  nine  o'clock  in  the  morning,  and  returning  in  the  evening. 
Wales  Street  is  a  short  distance  beyond  the  terminus  of  the  High- 
land line  at  or  near  Grove  Hall.  He  has  frequently  been  seen  in 
the  station  at  the  terminus,  waiting  to  take  a  car.  So  far  as  it 
appeared,  he  always  came  to  the  station  from  the  direction  of 
Wales  Street,  and  wont  toward  Wales  Street  after  leaving  the  cars. 
Several  witnesses  have  seen  him  frequently,  walking  to  and  from 
the  station  through  Blue  Hill  Avenue,  from  which  Wales  Street 
leads.  He  has  been  seen,  by  various  witnesses,  in  and  about  the 
house  on  Wales  Street,  occupied  by  his  family,  and  on  many  occa- 
sions, day  and  evening,  sometimes  in  dressing-gown  and  slippers, 


JENKINS    V.    SHAW.      HOUSE,    1876.  271 

or  other  undress,  sometimes  sitting  on  the  piazza,  and  sometimos 
at  the  table.  He  has  frcquentl}'  been  seen  carr^'ing  water  to  the 
house  from  a  well  near  by.  There  was  much  other  evidence  of  a 
similar  character  which  it  is  unnecessary'  to  state. 

In  the  summer  of  1875,  in  conversation  with  George  Z.  Adams, 
Mr.  Sh'iw  made  an  allusion  to  "  the  place  where  he  lived,  in  Wales 
Street."  William  F.  Merritt,  who  resides  in  that  neighborhood 
in  a  house  similar  in  size  and  construction  to  that  occupied  b}'  Mr. 
Shaw's  famil}^  testified  to  a  conversation,  in  the  house  of  the  wit- 
ness, late  in  the  summer  of  1875,  in  which  Mr.  Shaw  remarked, 
"  This  house  is  similar  to  ours."  In  the  fall  of  1874,  Charles 
Davenport,  meeting  him  in  the  horse-cars,  inquired  where  he  lived. 
He  replied  that  he  lived  "  up  over  the  hill,  near  Dr.  Shurdeff' s." 
The  house  alluded  to  as  Dr.  Shurtleft's,  is  in  Wales  Street  and  is 
the  second  house  from  that  occupied  by  Mr.  Shaw's  family.  M.  F. 
Lynch,  a  vender  of  newspapers  and  periodicals,  has  for  a  year 
past  delivered  the  "  Globe  "  newspaper  to  Mr.  Shaw,  at  tha  Wales 
Street  house.  It  did  not  directly  appear,  that  this  was  done  by 
Mr.  Shaw's  direction,  but  the  bills  for  the  newspaper  headed 
"  Geo.  A.  Shaw  to  M.  F.  Lynch,  Dr.",  were  uniformly  sent  to  the 
Wales  Street  house,  and  paid  by  Mr.  Shaw's  daughter.  In  one 
instance  the  bill  was  presented  at  the  house  to  Mr.  Shaw  in  per- 
son, who  said  he  would  leave  the  money  the  next  morning,  and  it 
was  so  left,  —  by  whom  it  did  not  appear.  The  same  witness  had  a 
conversation  with  Mr.  Shaw  in  the  city  hall  in  June  or  July, 
1874.  He  inquired  if  Mr.  Shaw  had  moved  into  Dorchester,  to 
which  Mr.  Shaw  replied  vhat  he  had,  and  that  he  resided  there. 
The  witness  who  lived  in  Dorchester,  then  a^ked  him  if  they 
might  use  his  name  as  a  delegate  tj  a  political  convention,  to 
which  he  replied  "  Not  yet,  not  yet,  not  3'et  awhile,"  and  said  that 
he  still  claimed  his  legal  residence  in  ward  5. 

George  W.  Wood,  a  carpenter,  testified  that  he  received' an 
order  from  Mr.  Shaw,  May  2G,  1875,  to  do  some  work  upon  the 
Wales  Street  house,  which  he  did,  receiving  his  instructions  from 
Mr.  Shaw.  The  bill  was  made  out  and  presented  to  Mr.  Shaw, 
who  said  he  would  pay  it.  It  was  afterward  paid,  partly  by  Mrs. 
Shaw,  and  partly  by  her  daughter. 

Lorenzo  Abbott,  a  painter,  testified  that  Mr.  Shaw  called  at  his 
shop  in  November,  1875,  ordered  some  work  upon  the  Wales 
Street  house,  which  was  done,  and  subsequently  paid  for  it. 

John  Galvin  testified,  that  prior  to  the  removal  of  Mr.  Shaw's 
family  to  Wales  Street  in  1874,  Mr.  Shaw  said  to  him,  "  You  are 
going  to  have  some  new  neighbors."  Galvin  inquired  who  they 
were.     Mr.  Shaw  replied  that  his  wife's  mother  was  going  to  hire 


272  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

a  bouse  in  his  (Galvin's)  neigliborhood,  and,  on  account  of  the 
delicate  state  of  his  wife's  health,  he  was  going  to  take  his  family 
out  there.  Upon  being  asked  whether,  in  that  case,  he  could  come 
back  to  the  council  from  ward  5,  he  replied  that  he  always  in- 
tended to  keep  his  legal  residence  where  it  was  then.  Galvin  lived 
in  ward  17,  about  ten  minutes'  walk  from  Wales  Street. 

George  L.  Burt  called  on  Mr.  Shaw,  at  the  Wales  Street  house, 
during  his  illness  early  in  1875.  In  the  course  of  conversation, 
he  inquired  of  Mr.  Shaw,  whether  he  had  taken  up  his  residence 
out  there.  Mr.  Shaw  replied,  "  No,"  that  his  legal  residence  was 
still  in  ward  o,  '•  as  usual." 

Samuel  A.  Chittenden,  a  provision  dealer,  has  furnished  the 
family  in  the  Wales  Street  house  with  provisions  since  their 
removal  thither.  The  bills  are  charged  to  Mrs.  Sawin,  and  paid 
by  Mrs.  Shaw.  The  orders  are  given,  sometimes  by  Mrs.  Shaw, 
and  sometimes  by  her  daughter.  The  witness  never  saw  Mrs. 
Sawin. 

Jeremiah  Harrigan,  a  member  of  the  common  council  in  1875, 
testified  that  Mr.  Shaw's  residence  was  a  frequent  subject  of  spec- 
ulation and  jest  about  the  city  hall.  Meeting  Mr.  Shaw,  in  the 
n>essenger's  room  one   morning   in  April,  1875,  he  said  to  him, 

"George,   where   the do  3^ou   live,   anyhow?"      Mr.    Shaw 

replied  that  he  boarded  with  his  mother-in-law  in  Dorchester, 
but  still  claimed  a  residence  in  ward  5,  and  that  he  sometimes  said 
that  his  home  was  in  the  hearts  of  the  people.  The  witness,  being 
asked  by  counsel  for  Mr.  Shaw,  whether  he  did  not  understand  the 
reply  to  be  a  joke,  said  he  didn't  know  about  the  living  in  Dor- 
chester, but  when  Mr.  Shaw  said  his  home  was  "in  the  hearts  of 
the  people,"  he  thought  that  was  a  joke. 

Thomas  R.  Cooper  and  Willard  S.  Farrington,  testified  that 
they  have  carried  letters  and  papers  addressed  to  George  A.  Shaw, 
to  the  Wales  Street  house ;  Cooper,  more  pr  less,  for  a  year,  and 
Farrington  for  five  or  six  months  past. 

Augustus  Parker,  a  member  of  the  common  council,  living:  on 
Seaver  Street,  Dorchester,  testified  that  on  several  occasions 
during  the  past  year  he  has  been  driven  in  a  carriage  with  Mr. 
Shaw  to  Dorchester,  late  at  night,  after  meetings  of  the  council, 
or  of  committees,  —  once  or  more  to  Wales  Street ;  and  at  other 
times,  he  has  been  left  at  his  own  house  on  Seaver  Street,  before 
going  to  Wales  Street,  and  has  heard  Mr.  Shaw  tell  the  driver  to 
go  to  Wales  Street.  He  was  corroborated  to  some  extent  by  the 
testimony  of  a  hack-driver. 

Alvah  H.  Peters,  city  messenger,  testified  that  a  few  months 
ago,  some  person  asked  Mr.  Shaw,  in  his  presence  where  he  lived. 


JENKINS   V.    SHAW.       HOUSE,    1876.  273 

Mr.  Shaw  replied  that  he  was  "temporarily  located"  in  ward  10. 
In  October,  1875,  he  directed  Peters  to  send  the  proceedings  of 
the  cit)-  government  to  him  at  Mrs.  Sawin's  house  on  Wales 
Street.  At  the  commencement  of  the  political  year  of  1876,  he 
directed  Peters  to  have  his  address  printed  on  the  official  envelopes 
as  "  142  Lincoln  Street."  Afterward,  he  directed  it  to  be  changed 
to  "Wales  Street,  Dorchester,  care  of  Mrs.  Sawin,"  where  they 
have  ever  since  been  sent. 

Mr.  Shaw  testified  among  other  things  heretofore  stated,  that 
he  had  taken  every  means  known  to  him  to  keep  his  legal  domicile 
in  ward  5,  and,  referring  to  the  hiring  of  lodgings  there,  etc.,  said 
that  he  made  these  arrangements  for  the  purpose  of  securing  his 
political  rights. 

Evidence  was  produced  in  behalf  of  Mr.  Shaw,  tending  to  show 
that  Jenkins,  the  petitioner,  for  two  years  or  more,  has  been  an 
inhabitant  of  ward  8,  and  that  he  had  no  home,  or  dwelling-place, 
in  ward  5,  during  the  year  preceding  the  election.  The  petitioner 
offered  no  evidence  in  rebuttal. 

The  foregoing  statement  comprises  the  substance  of  all  the 
evidence  in  the  case.  Upon  this  evidence  there  was,  and  could  be, 
substantialh^  no  dispute,  that,  on  the  one  hand,  Mr.  Shaw  has 
alwa3's  declared  his  legal  residence,  or  legal  domicile,  to  be  in  ward 
5,  and  taken  such  steps  as  he  deemed  sufficient,  to  make  his  declared 
intent  effectual ;  and,  on  the  other,  that  his  place  of  actual  residence 
to  all  intents  and  purposes  has  been  in  ward  16,  since  June,  1874, 
and  that  he  has  had  no  actual  residence  in  ward  5  for  several  years. 
The  facts  are  clear  and  indisputable,  the  evidence  being  substantially' 
conclusive  on  both  points.  Indeed,  it  was  admitted  by  counsel, 
that  the  only  question  in  the  case,  was  of  the  legal  effect  of  the 
evidence,  the  facts  as  to  actual  habitancy  being  substantially  con- 
ceded. All  the  outward  indicia  of  habitanc}'  surround  the  Wales 
Street  house,  and  point  to  it  as  Mr.  Shaw's  home.  He  constantly 
resorts  there,  and  there  he  spends  the  greater  part  of  his  time 
when  not  engaged  in  his  daily  avocations  ;  he  orders  and  pays  for 
repairs  upon  the  house;  he  assists  in  the  household  duties;  he 
receives  his  letters,  papers  and  bills  there,  and  there  reside  his  wife 
and  children,  with  whom  his  relations  of  affection  and  dut}'  continue 
undisturbed.  The  "temporary-"  absence  of  his  family  from  ward 
5  has  uninterruptedly  continued  for  ten  years.  The  object  with 
which,  as  he  says,  he  removed  his  famil}'  to  Dorchester,  namely,  to 
secure  the  benefit  of  Dr.  Shurtleff's  care,  was  defeated  by  the  death 
of  that  gentleman  within  a  few  months  after  the  removal.  There 
was  no  evidence  before  the  committee  that  he  has  ever  intended  to 
return  with  his  family  to  ward  5  as  a  place  of  actual  residence. 


274  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

He  did  not  so  testify,  nor,  so  far  as  the  evidence  shows,  has  he 
ever  so  declared,  though  his  declarations  that  he  intended  to  retain 
it  as  his  legal  or  political  domicile  have  been  constant.  Nor  was 
there  any  evidence  tending  to  show  that  he  ever  had  any  intention 
to  terminate  his  residence,  or  the  residence  of  his  family,  in  Dor- 
chester at  any  definite  time.  The  fact  that  he  has  been  assessed 
and  registered  in  ward  5,  taken  in  connection  with  the  testimony 
of  the  assessors  and  registrars,  as  to  their  mode  of  procedure,  has 
no  effect,  except  as  evidence  of  his  intent  {Fisk  v.  Chester,  8  Gray, 
oOG) ,  for  the  testimony  of  the  officers  shows,  that  a  person  is  assessed 
in  the  ward  which  he  claims  as  his  residence,  without  regard  to  the 
fact,  and  that  he  is  registered  where  he  is  assessed ;  the  result  of 
this  system  being,  that  the  mere  declaration  of  the  person  fixes 
the  place  of  assessment  and  registration,  in  the  absence  of  evidence 
to  the  contrary.  The  acts  of  Mr.  Shaw,  in  hiring  lodgings,  etc.,  in 
ward  5,  in  1874  and  1875,  when  set  against  the  circumstances 
surrounding  his  occupancy  of  the  Wales  Street  house,  are  of  little 
weight.  It  is  impossible  to  allow  them  any  effect,  as  acts  of  actual 
habitancy,  done  bona  fide,  and  without  any  ulterior  purpose.  In- 
deed, Mr.  Shaw  explicitly  says,  that  they  were  done  "  for  the  pur- 
pose of  securing  his  political  rights."  Apparently,  he  believed  them 
effectual  for  his  purpose,  but  he  mistook  the  law.  They  are  not 
without  significance,  however,  for  they  are  in  the  nature  of  admissions 
against  himself. 

Upon  the  evidence,  the  committee   found  the  following  facts  :  — 

1.  That  in  18G7,  or  prior  thereto,  Mr.  Shaw  removed  from  ward 
5,  having  no  definite  intention  ever  to  return  to  that  ward  as  a 
place  of  actual  residence. 

2.  That  he  has  had  no  place  of  actual  residence,  there,  since  1867. 

3.  That  his  acts,  in  hiring  lodgings  there,  etc.,  in  1874  and  1875, 
were  done  solely  with  a  view  to  retain  a  domicile  there  for  political 
purposes,  and  not  as  acts  of  actual  habitaucj',  or  with  an}"  view  to 
future  actual  habitancy. 

4.  That  his  home,  dwelling-place,  or  place  of  actual  residence, 
from  June,  1874,  to  the  time  of  the  election,  was  in  ward  16. 

5.  That,  at  the  time  of  his  removal  thither,  in  1874,  he  had  no 
intention  to  abandon  it,  as  a  place  of  actual  residence,  at  any 
definite  time,  nor  has  he  since  had  such  intention. 

Under  the  Constitution  of  this  Commonwealth  (Amendments, 
Art.  XXI.),  "every  representative,  for  one  year  at  least,  next 
preceding  his  election,  shall  have  been  an  inhabitant  of  the  dis- 
trict for  which  he  is  chosen." 

In  the  Constitution,  also  (part  second,  chap.  1,  sect.  2,  second 
clause),  the  following  rule  of  interpretation  is  prescribed:  "And, 


JENKINS   V.    SHAW.      HOUSE,    1876.  275 

to  remove  all  doubts  concerning  the  meaning  of  the  word  '  inhabi- 
tant,' in  this  Constitution,  ever}'  person  shall  be  considered  as  an 
inhabitant,  for  the  purpose  of  electing,  and  being  elected,  into  an}'- 
office  or  place  within  this  state,  in  that  town,  district  or  planta- 
tion, where  he  dwelleth  or  hath  his  home." 

Applying  the  constitutional  test  to  the  case  of  Mr.  Shaw,  there 
seems  to  be  no  doubt  as  to  the  result.  The  requirement  being, 
that  he  shall  have  been  an  "  iuhabitant"  of  his  district  during  the 
entire  year  preceding  his  election,  and  an  inhabitant  of  the  dis- 
trict being  one  who  "  dwelleth  or  hath  his  home "  there,  he  was 
certainly  ineligible,  unless  the  words  of  the  Constitution  are  to  be 
construed  in  some  technical  sense,  differing  from  the  ordinary  and 
popular  acceptation,  and  unless  it  is  possible  for  a  person  to 
"  dwell  or  have  his  home  "  in  a  certain  place,  in  some  legal  sense, 
without  in  fact  dwellins;  or  havins:  his  home  there. 

The  law  of  domicile  is  apparently  involved  in  some  uncertainty 
and  confusion,  arising  less,  however,  from  any  difficulty  in  the 
subject,  than  from  the  careless  manner  in  which  questions  arising 
under  it  have  frequently  been  treated  from  an  inaccurate  use  of 
terms,  and  from  failure  to  observe  well-grounded  distinctions. 
These  causes  have  operated  to  produce  many  erroneous  impres- 
sions in  the  popular  mind.  Many  of  the  cases  before  election 
committees  are  entirely  worthless  as  precedents,  and  the  decisions 
of  the  courts,  though  of  superior  authority,  are  not  entirely  in 
harmony  with  each  other.  In  the  opinion  of  the  committee,  how- 
ever, the  controlling  principles  are  sufficiently  plain,  and  the  diffi- 
culties which  are  supposed  to  surround  a  question  of  this  character, 
arise  more  from  misunderstanding  and  misconstruction,  than  from 
any  inherent  obscurity  or  defect  in  the  law. 

In  prescribing  the  rule  of  interpretation,  found  in  the  Constitu- 
tion, and  above  referred  to,  the  framers  of  that  instrument  declared 
their  purpose,  —  which  was,  "to  remove  all  doubts  concerning 
the  meaning  of  the  word  '  inhabitant,'  in  this  Constitution." 
Apparently,  they  considered  that  no  person  could  misunderstand 
the  meaning  of  the  terms  in  wliich  they  define  an  inhabitant ; 
namely,  one  who  "  dwelleth  or  hath  his  home,"  in  a  certain  place. 
The  words  would  still  seem  too  plain  for  doubt,  but  for  the  erro- 
neous and  unfounded,  though  somewhat  general  impression,  that  a 
person  may  have  a  "domicile "in  one  place  for  some  political 
purpose,  while  actually  and  permanently  residing  elsewhere  ;  an 
idea  which  has  probably  arisen,  in  part,  from  the  long-continued 
toleration  of  the  pernicious  practices  of  designing  persons,  who, 
to  obtain  office,  to  avoid  taxation,  or  for  other  purposes,  claim  and 
are  allowed  to  retain  domiciles  to  which  they  are  not  legally  en- 


271)  MASSACHUSETTS   ELECTION    CASES — 1853-1885. 

titled.  The  purpose  of  the  framers  of  the  Constitution  evidently 
was,  to  require  the  representative  to  dwell  in  the  midst  of  his  con- 
stituencv,  to  wliora  he  might  thus  be  easily  accessible,  and  to 
retiuire  constituencies  to  be  represented  by  one  of  themselves, 
through  whom  they  might  easily  secure  their  rights,  and  make 
known  their  grievances.  There  are  obvious  reasons  for  this  require- 
ment. The  same  provisions  were  extended  by  the  Constitution, 
to  councillors,  senators  and  representatives ;  and,  while  other 
restrictive  qualifications  have,  from  time  to  time,  been  removed 
(Const.  Amend.,  Arts.  VI.,  VII.,  XI.),  this  has  continued  the 
settled  policy  of  the  Commonwealth,  since  the  adoption  of  the 
Constitution. 

There  is  another  consideration  of  some  significance.  The  con- 
stitutional definition  of  "inhabitant"  applied  alike  to  voters  and 
persons  voted  for.  The  rule  was  prescribed  for  the  benefit  of 
the  former  as  much  as  of  the  latter.  It  is  reasonable  to  suppose, 
therefore,  that  the  purpose  was  to  define  the  word,  in  terms  which 
no  citizen,  however  unskilled  or  unlearned  in  the  technical  use  or 
signification  of  words,  could  mistake  ;  and,  having  this  in  view,  it 
was  declared  that  a  person  shall  be  deemed  an  inhabitant  of  the 
place  wherein  he  dwells  or  has  his  home,  the  meaning  of  these 
terms  being  plain  to  the  commonest  understanding. 

To  "  dwell,"  according  to  Webster,  is  to  sta}",  to  abide  as  a 
permanent  residence,  to  have  a  habitation  for  some  time,  or  per- 
manence ;  according  to  "Worcester,  to  abide  for  some  length  of 
time,  to  continue,  to  have  a  fixed  place  of  residence.  "  Home," 
in  Webster,  is  the  house  in  which  one  resides ;  residence,  the  place 
in  which  one  dwells,  —  all  that  pertains  to  a  dwelling-place;  in 
"Worcester,  one's  own  house,  dwelling,  or  place  of  abode,  residence. 

As  there  can  be  no  doubt,  that  Mr,  Shaw  did  not  actually  dwell, 
or  have  his  home,  in  ward  5,  during  the  year  preceding  the  elec- 
tion, the  above  considerations  seem  to  be  decisive.  It  was  urged 
in  his  behalf,  however,  that  the  constitutional  provisions  are  not  to 
bo  construed,  according  to  the  natural  and  ordinary  sense  of  the 
words  used,  but  that  "  inhabitancy,"  "  dwelling-place,"  "  home," 
"  residence,"  and  "  domicile,"  as  used  in  our  Constitution  and 
statutes,  are  interconvertible  and  synonymous  terms ;  that  a 
purely  legal  residence  or  domicile  is  equivalent  to  actual  inhabi- 
tancv,  a  dwelling-place  or  home,  and  that  Mr.  Shaw,  having  had  a 
legal  domicile  in  ward  5,  in  1866,  or  previously,  cannot  be 
deprived  of  it,  except  by  abandonment  of  it  with  no  intent  to 
return  and  the  acquisition  of  a  domicile  elsewhere. 

The  difficulty  with  this  proposition  is,  that  it  involves  the  false 
assumption  that  a  pers  m  may  have  a  "legal  residence,"  "legal 


JENKINS   V.    SHAW.      HOUSE,    1876.  277 

domicile,"  or  domicile  for  political  purposes  in  one  place,  while 
actually  and  permanently  residing  elsewhere  ;  and  that  mere  intent 
to  have  a  political  domicile  in  a  particular  place  is  sufficient,  with- 
out the  concurrent  fact  of  actual  habitanc}'. 

In  support  of  his  position,  counsel  for  Mr.  Shaw  cited  Opinion 
of  the  Justices,  5  Met.  587.  The  question  there,  was  of  the  quali- 
fication of  a  voter,  under  Constitutional  Arnendments,  Art.  III., 
whereby  the  right  was  conferred  upon  a  citizen,  "  who  shall  have 
resided"  in  the  Coramonwoallh  and  district,  etc.  The  justices 
consider  the  word  "  inhabitant,"  in  the  Constitution,  and  "one 
who  has  resided,"  in  the  amendment,  as  substautialy  identical  in 
meaning,  and  that  both  expressions  are  equivalent  to  "domicile." 
But  it  is  plainly  evident  from  the  whole  opinion,  that  they  attach 
no  meaning  to  the  word  "domicile,"  save  its  popular  one,  as  the 
principal  place  of  abode,  or  actual  residence,  and  that  is  the  only 
correct  interpretation  of  the  term.  There  is  nothing  in  the 
opinion  to  imply  that  a  person  may  have  a  domicile  in  one  place, 
for  political  puposes,  while  actually  residing  elsewhere.  On  the 
contrary,  the  justices  cite  Ahiy^gton  v.  North  Bridgewater,  23  Pick. 
170,  in  which  case  the  court  say  that  "domicile"  and  "  place  of 
inhabitancy  "  are  substantially  identical  in  meaning,  but  that  both, 
under  the  Constitution,  signify  the  place  where  one  "  dwellcth 
or  hath  his  home."  Bouvier  defines  domicile  as  "the  place 
where  a  person  fixes  his  ordinary  dwelling,  without  a  present 
intention  of  removal ;"  and  Burrill,  as  "  a  residence  at  a  particu- 
lar place,  accompanied  by  positive  or  presumptive  proof  of  an 
intention  to  remain  there  for  an  unlimited  time."  There  can  be 
no  domicile  in  any  sense,  or  for  any  purpose,  by  force  of  mere 
intent,  without  residence.  The  rule  that  the  fact  and  intent  must 
concur,  is  laid  down  in  Opinion  of  the  Justices,  supra,  and  is  so  well 
established,  that  other  authority'  need  not  be  cited  in  support  of  it. 
It  does  not  follow,  from  this,  that  the  actual  residence  in  the  place 
of  domicile  must  be  constant  and  unbroken.  A  person  absent 
from  his  domicile  for  a  temporary  purpose  will  not  lose  it  thereby. 
But  the  committee  are  unable  to  sa}'  that  Mr.  Shaw's  absence 
from  ward  5,  as  a  place  of  actual  residence  for  ten  j-ears  past,  is 
merely  temporary.  The  fact  appears  to  be  the  other  way,  and  so 
the  committee  are  obliged  to  find. 

In  Harvard  College  v.  Gore,  5  Pick.  377,  the  court  sa}'  that  tlie 
doctrine  that  there  may  be  at  the  same  time  a  domicile  of  right 
and  a  domicile  of  fact  is  not  supported  b}'  the  authorities.  The 
following  language  from  the  opinion  in  that  case  was  much  relied 
on  by  counsel  for  Mr.  Shaw:  "The  term  inhabitant,  as  used  in 
our  laws,  etc.,  means  something  more  than  a  person  having  a 


278  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

domicile.     It  imports  citizenship  and  municipal  relations 

An  inhabitant,  by  our  Constitution  and  laws,  is  one  who,  being 
a  citizen,  dwells  or  has  his  home  in  some  particular  town,  where 
he  has  municipal  rights  and  duties,  and  is  subjict  to  particular 
burdens  ;  and  tliis  liabitancy  may  exist  or  continue,  notwithstand- 
ing an  actual  residence  in  another  town  or  county,  provided  the 
absence  is  not  so  long,  or  of  such  a  nature,  as  to  interrupt  or  de- 
stroy the  municipal  relation  previously  formed."  This  is  undoubt- 
edly correct,  but,  in  its  application  to  the  present  case,  it  must  be 
remembered,  first,  that  the  evidence  shows,  and  the  committee  are 
obliiied  to  find,  that  Mr.  Shaw  does  not  dwell,  or  have  his  home 
in  ward  5  ;  and  second,  that  his  habitancy  in  ward  16  cannot  be 
considered  merely  temporary.  Further,  if  he  actually  dwells  in 
ward  16,  he  has  municipal  rights  and  duties  there,  and  nowhere 
else.  He  may  decline  to  exercise  the  rights,  and  he  may  evade 
the  duties,  but  they  are  his  nevertheless  if  he  actually  resides 
there  and  his  residence  is  not  for  a  temporary  purpose.  In  the 
same  case,  the  court  say  that  "  the  right  to  vote,  eligibility  to 
office,  and  the  liability  to  taxes,  in  one  town,  are  necessarily 
exclusive  of  the  same  rights  and  liabilities  in  all  other  towns." 
There  can  be  no  doubt,  upon  the  facts  of  Mr.  Shaw's  case,  that  he 
could  have  voted,  and  become  a  candidate  for  oflace,  in  ward  16, 
in  1875,  had  he  seen  fit  to  claim  the  right. 

Change  of  domicile  does  not  depend  so  much  upon  the  intention 
to  remain  in  the  new  place,  for  a  definite  or  indefinite  period,  as 
upon  its  being  without  a  definite  intention  to  return.  An  inten- 
tion to  return,  however,  at  a  remote  or  indefinite  period,  to  the 
former  place  of  actual  residence  will  not  control,  if  the  other  facts 
which  constitute  domicile,  give  the  new  residence  the  character  of  a 
permanent  home,  or  place  of  abode.  The  right  of  election  exists 
only  where  the  facts  of  residence  are  ambiguous.  Hallett  v.  Bassett^ 
100  Mass.  167,  and  cases  cited. 

Great  confusion  has  sometimes  arisen  from  misuse  of  the  word 
and  misunderstanding  of  the  doctrine  of  intent.  In  the  outset  it 
may  be  observed  that  there  is  a  clear  distinction  between  intent 
and  declaration  of  intent.  Intent  is  a  fact,  to  be  proved  like  other 
facts,  by  evidence.  The  declai'ation  is  merely  evidence  of  the 
intent,  and  is  conclusive  or  not,  according  to  circumstances.  It 
is  always  liable  to  be  controlled  b}-  other  evidence,  the  declaration 
or  election  being  but  one  element  in  determining  the  fact.  And 
where  the  acts  of  a  person  are  inconsistent  with  his  declarations, 
tlie  actual  intent  must  be  found,  as  a  fact,  upon  the  whole  evi- 
dence. A  declaration  of  an  intent,  which  does  not  in  reality  exist, 
is  ineffectual  for  any  purpose.     And  an  actual  intent,  unaccompa- 


JENKINS   V.    SHAW.      HOUSE,    1876.  279 

nied  b}^  any  concurrent  act  is  equally  ineffodual.  In  any  case 
wherein  the  intent  is  material,  it  is  important  to  ascertain  what  the 
intent  actually  is,  and  whether  it  is  as  declared,  or  not.  In  the 
present  case,  admitting  that  Mr.  Shaw's  intent  was  as  he  declared 
it,  yet  it  is  wholly  nugatory ;  for  his  declarations  have  been,  not 
of  an  intent  to  abandon  ward  16,  as  a  place  of  actual  residence  at 
any  particular  time,  or  ever  to  return  to  ward  5  as  a  place  of 
actual  residence,  but  merely  to  retain  it  as  his  legal  or  political 
domicile.  There  is  no  such  thing  as  a  "legal"  or  "political" 
domicile,  in  one  place,  if  the  actual  and  permanent  residence  is 
elsewhere,  and  an  intent  to  have  it  so  cannot  make  it  so.  If  a 
person  leaves  one  place  of  residence,  and  becomes  an  actual  resi- 
dent elsewhere,  and  such  latter  residence  is  not,  in  fact,  temporary, 
the  latter  place  becomes  his  domicile,  and  municipal  rights  and 
duties  attach  to  him  there,  whether  he  would  have  it  so  or  not.  If 
it  be  suggested,  that  Mr.  Shaw  cannot  have  acquired  a  domicile  in 
ward  16,  without  an  intent  accompanying  his  actual  residence  there, 
the  suggestion  is  easily  met.  The  intent  which  the  law  regards,  is 
not  an  intent  that  the  facts  shall  have  a  particular  legal  eflect,  but 
an  intent  as  to  the  facts  themselves.  The  question  is  not,  whether 
Mr.  Shaw,  in  removing  to  Dorchester,  intended  to  vote,  pay  taxes, 
and  run  for  office  there,  but  whether  he  intended  to  live  there. 

In  the  present  case,  although  the  committee  were  obliged  to  find 
that  Mr.  Shaw  had  no  intent  to  actually  dwell  in  ward  5,  or  return 
to  it  as  a  place  of  actual  residence,  yet,  if  the  fact  was  otherwise, 
it  could  not  change  the  result.  The  intent  is  important,  only  when 
the  person,  actually  and  bona  fide,  has  two  or  more  real  places  of 
abode,  and  the  circumstances  attending  his  occupancy  of  each  are 
such  as  to  leave  it  doubtful  which  is,  in  fact,  his  principal  resi- 
dence. Hallett  V.  Bassett,  supra,  and  cases  cited.  The  facts  here 
do  not  present  such  a  case. 

In  Wait  V.  Ingalls,  ante,  p.  133,  the  committee  found  that 
Ingalls'  absence  in  Maine  was  intended  to  be,  and  was,  merely 
temporary,  and  that  his  actual  intent  throughout  was  to  remain 
an  inhabitant  of  Massachusetts.  It  is  difficult  to  see  how  that  con- 
clusion was  reached  upon  the  facts  but  that  finding  determined 
the  case  and  distinguishes  it  from  the  present. 

IJolman's  case,  Mass.  Election  Cases,  Gushing,  S.  &  J.,  647, 
differs  essentially  from  this  in  its  facts.  Mr.  Holman  retained  an 
actual  place  of  abode  for  his  family  in  Bostor,  which  they  occu- 
pied during  a  portion  of  the  time,  and  the  committee  found  that 
his  residence  in  Newton  for  a  few  months  was  merely  temporary. 

Lyman  v.  Fisk,  17  Pick.  234;  West  Boylston  v.  Sterling,  Id. 
128  ;  Sears  v.  Boston^  1  Met.  250  ;  Jennison  v.  Hapgood,  10  Pick. 


280  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

77;  Cochran  v.  Boston,  4  All.  177;  and  Com.  v.  KelleJier,  115 
Mass.  103,  were  also  cited  for  Mr.  Shaw,  and  have  been  carefully 
examined.  They  require  no  special  notice  here.  In  several  of 
them,  the  question  was  only,  whether  certain  evidence  was  sutB- 
cient  to  warrant  the  jury  in  finding  the  fact  of  domicile.  They 
are  all  distinguishable  from  the  present  case,  in  their  facts,  and 
contain  nothing  in  conflict  with  the  views  presented  here. 

The  case  most  directly  in  point  is  Holmes  v.  Greene,  7  Gray, 
299.  This  case  will  be  found  fully  to  support  the  position  of  the 
committee;  and  indeed  it  goes  further  than  the  present  case 
requires.  It  was  held  that  a  citizen  of  Massachusetts,  removing 
with  his  family  from  Fall  River  into  the  adjoining  town  of  Tiver- 
ton, in  Rhode  Island,  a  short  distance  from  his  former  residence, 
retaining  his  place  of  business  in  Fall  River,  and  actually  intend- 
insf  to  retain  his  domicile  there,  and  to  return  there  at  a  future 
period,  after  such  absence  for  a  year,  had  lost  his  domicile  in 
Massachusetts.     See,  also,  Whitney  v.  Sherburne,  12  All.  111. 

Upon  the  law  and  evidence,  the  case  seems  to  resolve  itself  into 
this :  — 

Mr.  Shaw,  having  once  had  a  legal  domicile  in  ward  5,  has  lost 
it  by  actual  and  continued  residence  elsewhere,  unless  he  has  been 
able  to  take,  and  has  taken,  the  necessary  steps  to  retain  it. 

To  do  this,  he  has  uniformly  declared  an  intent  to  retain  it. 

He  has  accompanied  bis  declai'ation  with  certain  acts,  which,  on 
the  whole  evidence,  are  without  effect  in  his  faA'or  and  in  some 
respects  are  significant  against  him. 

The  declared  intent,  alone,  is  clearly  insufficient.  If  he  has 
ever  declared  an  intent  to  return  to  ward  5,  as  a  place  of  actual 
residence,  his  declaration  is  controlled  by  the  other  evidence,  and 
the  committee  are  obliged  to  find  that  in  fact  he  had  not  such 
intent. 

The  acts  are  insufficient,  certainly,  unless  done  bona  fide,  as 
they  were  not,  and  accompanied  by  an  actual  intent  to  return  to 
ward  5,  as  a  place  of  residence  which  did  not  exist. 

Whether,  therefore,  the  view  of  the  law,  originally  taken  b}'  the 
committee,  or  that  contended  for  by  counsel,  be  correct,  the  result 
is  the  same.  The  committee  find,  and  report,  that  Mr.  Shaw  was 
not,  for  one  year  next  preceding  his  election,  an  inhabitant  of  the 
district  for  which  he  was  chosen,  and  that  he  was  ineligible  to 
election  therein. 

Near  the  close  of  the  hearing,  evidence  was  produced,  tending 
to  show  that,  for  more  than  two  years  preceding  the  election, 
Jenkins,  the  petitioner,  was  an  inhabitant  of  ward  8,  living  with 
his  mother  in  Hudson  Street,  and  during  that  time  he  had  no  home, 


JENKINS   V.    SHAW.      HOUSE,    1876.  281 

dwelling-place  or  domicile,  in  ward  5.  The  petitioner  had  ample 
opportunity  to  rebut  this  evidence,  if  it  was  untrue,  but  made  no 
attempt  to  do  so.  The  evidence  raised  great  doubt  in  the  minds 
of  the  committee,  whether  Jenkins  was  eligible  as  a  candidate,  and 
the  bui'den  of  proof  being  upon  him,  they  cannot  find  that  he  has 
sustained  it.  Although  it  was  shown,  that  he  received  at  the 
election  the  highest  number  of  votes  next  to  Mr.  Shaw,  they  do 
not  consider  themselves  justified  in  reporting  that  the  petitioner  is 
entitled  to  the  seat. 

There  is  a  consideration  of  grave  importance,  which  the  commit- 
tee feel  bound  to  bring  to  the  attention  of  the  house,  although  it 
has  in  no  degree  influenced  their  decision.  Unless  the  parties 
misunderstood  the  requirements  of  the  law,  the  case  apparently 
presents  a  gross  example  of  political  chicanery.  Mr.  Jenkins,  an 
inhabitant  of  the  eighth  Suffolk  district,  contests  the  claim  of  Mr. 
Shaw,  an  inhabitant  of  the  fifth  Norfolk  district,  to  the  seat  as 
representative  from  the  fifth  SuflTolk  district.  The  committee  are 
unable  to  say,  whether  similar  practices  are  generally  prevalent  in 
the  Commonwealth,  but,  in  their  opinion,  a  single  instance  should 
not  be  allowed  to  pass  unnoticed.  The  influence  of  every  such 
example  is  corrupting,  and  tends  to  the  demoralization  and  de- 
bauchery of  politics,  and  the  total  subversion  of 'the  principles  on 
which,  alone,  a  popular  government  can  rest.  Admitting  that  the 
parties  to  the  present  case  acted  innocently,  and  are  deserving  of 
no  rebuke,  it  is  still  within  the  power  of  the  house,  in  the  interest 
of  public  policy  and  political  morality,  to  establish  a  precedent, 
which  shall  put  a  salutary  check  upon  the  designs  of  persons  who 
may  hereafter  attempt  to  trifle  with  the  law.  The  committee  are 
unanimous  in  oflfering  these  suggestions. 

The  committee  recommend  that  the  petitioner  have  leave  to 
withdraw,  and  they  submit  the  accompanying  resolution. 

Mr,  Ward,  of  the  committee,  while  substantially  agreeing  with 
the  majority,  as  to  the  facts,  is  unable  to  concur  in  the  conclusion. 

[The  resolution  declared  the  seat  of  the  sitting  member  vacant. 
The  report  that  petitioner  have  leave  to  withdraw  was  accepted. 
H.  J.,  1876,  p.  172.  After  postponement,  and  extended  debate, 
the  resolution  declaring  the  seat  vacant  was  adopted,  by  a  vote  of 
126  yeas  to  67  naj'S.     H.  J.,  1876,  p.  179.] 


282  MASSACHUSETTS   ELECTION   CASES 1853-1885. 


Horace  L.  Bowker  et  al..  Petitioners. 

House  Document,  No.  U4.     March  7,  1876.     Report  by  A.  E.  Pillsbury, 
Chairman  ;  Mr.  Dean  dissenting. 

Votes  for  ineligible  Candidate.  Where  the  seat  of  a  representative  has  been  de- 
clared vacant,  on  account  of  the  ineligibility  of  the  member  returned,  it  cannot  be 
filled  by  the  person  having  the  next  highest  number  of  votes,  being  less  than  a 
plurality. 

New  Election.  When  refused.  Where  the  seat  of  a  member  has  been  declarsd 
vacant,  and  since  the  election  a  new  division  of  wards  has  been  made,  and  the 
aathority  of  the  ward  officers  to  conduct  and  make  return  of  the  election  of  repre- 
sentatives has  expired,  so  that  an  act  of  the  legislature  is  necessary  to  provide  a 
new  registration  of  voters,  a  polling  place,  and  election  officers,  which  must  postpone 
such  election  until  near  the  end  of  the  session,  a  new  election  will  not  be  ordered, 
especially  where  the  district  continues  to  be  represented  by  two  of  the  three  repre- 
sentatives to  which  it  was  entitled. 

Alphonso  J.  Robinson /or  ^eiif  toners. 

The  Committee  on  Elections,  to  whom  were  referred  the  peti- 
tions of  Horace  L.  Bowker,  Francis  M.  Hughes,  Richard  J.  Fife 
and  Robert  McCue,  respectively,  claiming  the  seat  as  representa- 
tive from  the  fifth  Suffolk  district,  recentl}'  vacated  ;  the  petitions 
of  John  Davis  and  others,  and  Edward  B.  Rankin  and  others,  that 
a  new  election  be  ordered,  in  said  district ;  and  the  remonstrance 
of  George  F.  Gay  and  others  against  the  same ;  having  met  the 
parties,  and  heard  the  arguments  of  counsel,  submit  the  following 
report :  — 

The  petitions  of  Bowker,  Hughes  and  Fife,  were  in  substance 
the  same  ;  each  petitioner  claiming  the  seat,  on  the  ground  that 
he  received  the  highest  number  of  votes  cast,  for  any  eligible 
person,  next  to  the  present  sitting  members.  McCue  alleged, 
only,  that  he  was  a  candidate,  and  received  a  large  number  of 
votes. 

It  being  doubtful  whether,  upon  the  occurrence  of  a  vacancy,  by 
reason  of  ineligibility,  the  person  receiving  the  next  highest  num- 
ber of  votes,  being  less  than  a  plurality,  is  thereby  entitled  to  the 
seat,  it  was  thought  proper  to  have  this  question  first  considered, 
as  the  determination  of  it  might  dispose  of  all  the  petitions,  and 
obviate  the  necessity  of  a  hearing  upon  the  facts,  to  ascertain 
which  of  the  petitioners  had  the  better  right.  No  objection  being 
made  to  this  order  of  proceeding,  the  petitioners  and  their  counsel 
wore  heard  upon  this  question. 


BOWKER,    PET.      HOUSE,    1876.  283 

The  Constitution  declares  that,  "in  all  elections  of  civil  officers, 
by  the  people  of  this  Commonwealth,  whose  election  is  provided 
for  by  the  Constitution,  the  person  having  the  highest  number  of 
votes  shall  be  deemed  and  declared  to  be  elected."  Amend.  Art. 
14.  There  is  no  constitutional  or  statutory  provision,  for  the  fill- 
ing of  vacancies  in  the  house  of  representatives,  except  the  decla- 
ration of  the  Constitution,  chap.  1,  art.  10,  that  the  house  "shall 
be  the  judge  of  the  returns,  elections  and  qualiQcations  of  its  own 
members,"  and  the  statutory-  provision  that,  "  when  a  vacancy'  oc- 
curs in  a  representative  district,  the  speaker  of  the  house  of  repre- 
sentatives shall,  in  the  precept  which  he  maj'  issue,  by  order  of  the 
house,  giving  notice  of  such  vacancy,  appoint  a  time  for  an  elec- 
tion to  fill  the  same."  Acts  of  1874,  chap.  376,  sect.  33.  It  is, 
therefore,  entirely'  within  the  power  of  the  house,  to  cause  a  vacancy 
to  be  filled,  or  omit  so  to  do,  at  their  pleasure,  and  to  award  the 
seat  to  any  person  possessing  the  constitutional  qualifications. 
The  powers  of  most  legislative  bodies  are  of  similar  extent,  and 
the  rule  of  procedure,  in  cases  of  this  character,  is  therefore  to  be 
drawn  almost  wholly  from  precedent. 

The  English  rule  is,  undoubtedly,  that  if  the  majority  candi- 
date is  ineligible,  and  the  voters  have  notice  of  the  fact  at  the 
time  of  the  election,  the  person  receiving  the  next  highest  number 
of  votes,  if  eligible,  is  elected.  Male  on  Elections^  336  ;  Clarke 
on  Election  Committees,  156  ;  Second  Southioark  case,  Clifford  on 
Elections,  259.  But  the  committee  are  unable  to  learn  that  this 
rule  has  ever  been  adopted  in  this  country,  save  in  the  state  of 
Indiana  {Carson  \.  JfcFhetridge,  15  Ind.  327),  while  the  decided 
weight  of  authority  is  against  it. 

The  American  doctrine  appears  to  be,  that  a  majoritj',  or  at 
least  a  plurality,  shall  in  every  case  be  required,  to  elect  a  person 
to  office  by  popular  vote,  and  that  no  rule  or  practice  should  be 
adopted,  or  sanctioned,  whereby  a  person  may  be  admitted  to 
office  by  virtue  of  a  less  number  of  votes.  The  English  rule 
would,  in  many  cases,  result  in  compelling  a  large  majority  to  sub- 
mit to  the  will  of  a  small  minority,  and,  if  carried  out  to  its  legit- 
imate results,  might  enable  a  person  to  reach  an  important  office 
by  a  single  vote,  cast  perhaps  by  himself.  Sound  policy',  as  well 
as  reason  and  authority,  seem  to  forbid  the  adoption  of  such  a 
doctrine  in  this  country,  it  being  a  fundamental  principle  of  our 
system  of  government,  that  only  the  will  of  a  majoritv,  or  at 
least  of  a  plurality,  shall  control.  To  this  etTect,  see  Com.  v. 
Chdey,  56  Pa.  St.  270;  Saunders  v.  ffaynes,  13  Cal.  145;  State 
V.  Giles,  1  Chand.  Wis.  112  ;  State  v.  Smith,  U  Wis.  497  ;  Ojnn- 


284.  3IASSACnUSETTS    ELECTION   CASES 1853-1885. 

ion  of  Justices,  38  Me.  597;  State  v.  Anderson,  1  Coxe,  N.  J., 
318;  People  V.  Clute,  50  N.  Y.  451;  Dillon  Man.  Corp.,  §  135, 
and  cases  cited. 

This  doctrine  has  been  adopted  in  both  houses  of  Congress. 
In  Smith  V.  Broicn,  2  Bartlett,  395,  in  the  house  of  represent- 
atives the  authorities  are  reviewed,  in  an  able  report  bj^  Mr. 
Dawes,  chairman  of  the  committee  on  elections,  and  the  conclu- 
sion reached  that  the  English  rule  "  has  never  been  adopted  in 
this  countr}',  and  is  wholly  inapplicable  to  the  sj^stem  of  govern- 
ment under  which  we  live."  In  the  senate  the  question  was  elab- 
orately discussed,  in  Abbott's  case.  Senate  Rep.  58,  42d  Cong.,  2d 
sess.,  in  which  it  is  asserted  that  in  this  country  an  election  b}'  a 
minoritv  of  the  persons  voting  is  not  to  be  tolerated  under  any  cir- 
cumstances, and  that  whether  the  voters  have  notice  of  the  inelisi- 
bilit}'  of  a  candidate  or  not,  is  of  no  consequence.  The  report 
was  adopted  b}'  the  senate,  after  an  exhaustive  debate. 

The  same  rule  was  followed  by  this  house,  in  Pease  v.  Powell, 
ante,  p.  108.  The  seat  of  Rowell  was  contested  by  Wesley 
A.  Gove,  who  received  the  next  highest  vote,  on  the  ground  that 
Rowell  had  not  been  an  inhabitant  of  the  district  for  one  year 
next  preceding  the  election.  The  committee  found  that  Rowell 
was  ineligible  by  reason  of  non-residence,  and  reported  a  resolu- 
tion unseating  him,  and  awarding  the  seat  to  Gove.  From  the 
journal  of  the  house  it  appears  that,  after  debate,  the  latter  part  of 
the  resolution,  declaring  Gove  entitled  to  the  seat,  was  stricken 
out,  and  the  former  part,  unseating  Rowell,  adopted. 

The  case  of  Somerset,  Cushing,  8.  &  J.,  576,  has  sometimes  been 
cited,  as  authority  for  the  proposition  that  votes  cast  for  an  ineligible 
candidate  are  to  be  treated  as  blanks,  leaving  the  election  to  the 
person  having  the  next  highest  vote  ;  but  an  examination  of  that 
case  will  show  that  it  does  not  support  this  position.  The  case 
arose  in  1849,  before  the  adoption  of  the  14th  constitutional  amend- 
ment, and  while  the  majority  rule  was  in  force.  The  point  decided 
was  only  that  a  vote  cast  for  an  ineligible  candidate  should  be  re- 
jected, in  determining  what  number  constituted  a  majority  of  all 
the  votes  cast.  No  question  arose  as  to  the  right  of  a  person 
having  the  highest  vote  next  to  an  ineligible  candidate. 

The  chiim  of  the  petitioners  appears  to  be  unsupported,  either 
by  i)rinciple  or  authority.  Under  these  circumstances,  the  com- 
mittee would  not  be  justified  in  reporting  in  favor  of  either,  even 
if  it  were  ascertained  which  has  the  better  right.  Considering 
the  case  of  each  petitioner  by  itself,  and  admitting  all  his  allegations 
of  fact  to  be  true,  he  does  not  establish   his  right  to   the  seat. 


BOWKER,    PET.      HOUSE,    1876.  285 

The  committee,  therefore,  recommend  that  the  petitioners,  Rowker, 
Hughes,  Fife  and  McCue,  severall}'  havo  leave  to  withdraw.* 

*  [Note  by  the  Editors.  Votes  for  Ineligible  Candidates.  The  early  opinion  in 
Massachusetts,  although  never  affirmed  by  its  courts,  was  that  votes  cast  for 
ineligible  candidates  must  be  regarded  as  blanks  and  void,  thereby  giving  the  elec- 
tion to  the  person  receiving  the  next  highest  number  of  votes.  Mr.  Cashing,  in  his 
Law  and  Practice  of  Leg.  Assemblies,  §  17-5,  stated  the  principle :  —  "  If  iin  elec- 
tion is  made,  of  a  person  who  is  ineligil)le,  that  is,  incapable  of  being  elected,  the 
election  of  such  person  is  absolutely  void,  even  though  he  is  voted  for  at  the  same  time 
with  others  who  are  eligible,  and  who  are  accordingly  elected ;  and  this  is  equally 
true,  whether  the  disability  is  known  to  the  electoi-s  or  not,  whether  a  majority  of 
all  the  votes,  or  a  plurality  only,  is  necessary  to  the  election,  and  whether  the  votes 
are  given  orally  or  by  ballot."  Mr.  Gushing  relies,  for  his  authority,  upon  English 
cases ;  and  the  house  of  representatives,  in  the  earlier  election  controversies,  was  in- 
clined to  follow  the  rule,  which  he  sought  to  ingraft  from  the  English  authorities. 
This  was  done,  presumably,  partly  on  account  of  those  authorities,  and  partly 
because,  under  the  system  then  in  force,  of  requiring  a  majority  vote  to  elect,  it 
was  more  convenient  to  reject  entirely,  votes  for  ineligible  candidates.  Case  of 
Somerset,  Gushing,  S,  &  J.,  576;  Report  on  Votes  for  Ineligible  Candidates,  lb.  496. 
It  should  be  observed,  however,  that  the  English  rule,  originating  in  the  famous 
Parliamentary  Contest  of  Wilkes  and  Luttrell,  in  1769,  has  been  materially  modified, 
and  much  of  its  injustice  removed,  by  the  later  English  cases.  The  present  rule  in 
England  is  formulated  by  Leigh  iS-  LeMarchaiit,  in  their  Law  of  Elections,  p.  187,  as 
follows:  —  "  Whenever,  at  the  time  of  election,  a  candidate  is  incapacitated  from 
sitting  in  Parliament,  and  due  notice  is  given  to  the  electors,  all  votes  given  subse- 
quent to  the  publication  of  that  notice  for  that  candidate,  will  be  thrown  away  and 

void Express  notice  of  a  disqualification  must  in  all  cases  be  given,  and  all 

votes  recorded  before  such  notice,  are  good.  When,  therefore,  the  notice  has  not 
been  given,  until  after  the  election  has  begun,  the  question  arises,  whether  it  was 
given  to  a  sufficient  number  of  electors,  so  that  by  striking  off  certain  votes  from 
the  sitting  member's  poll,  the  petitioner  would  be  placed  in  a  majority.  If  possible, 
the  notice  should  be  personally  served  on  every  voter,  and  advertised  in  the  news- 
papers; if  that  be  impossible,  the  notice  should  be  affixed  to  some  conspicuous 
place,  near  the  polling-place,  and  should  be  widely  placarded,  if  the  disqualification 

is  discovered  on  the  nomination  day Knowledge,  on   the  part  of  voters, 

of  a  fact,  which,  if  they  knew  the  law,  they  would  know  constituted  a  disqualifica- 
tion, Avill  not  amount  to  a  sufficient  notice  of  disqualification,  for  the  purpose  of 
seating  the  next  unsuccessful  candidate."  And  see,  Regina  v.  Maijor  of  Teickesbiinj, 
L.  R.  3  Q.  B.  629;  Drinkwater  v.  Deakin,  L.  R.  9  C.  P.  626;  Galwaij,  2  O'Malley 
&  Hardcastle,  46 ;  Tipperary,  3  lb.  41 ;  French  v.  Nolan,  Irish  Rep.  6  Com. 
Law,  464. 

The  American  Rule  does  not  regard  Votes  for  Ineligible  Persons  as  Blanks.  The 
committee,  in  the  above  case,  in  refusing  to  follow  the  English  rule,  established  the 
practice  in  the  house  of  representatives,  in  full  accord  with  the  great  weight  of 
American  authority.  As  stated  in  the  report,  Indiana  is  the  only  state  which 
adopted,  and  apparently  adheres  to,  the  former  rule  and  practice  in  England, 
holding  that  where,  by  statute,  a  person  occupying  a  judicial  position  is  declared 
ineligible  to  any  other  office,  votes  for  such  a  person,  for  such  other  office,  must  be 
presumed  to  have  been  cast  with  at  least  constructive  notice  of  the  statute  ineligi- 
bility, and  are  void,  so  that  the  next  highest  candidate  is  elected.  Gulick  v.  Xetr, 
14  Ind.  93.  This  case  is  not  law  to-day,  either  in  England  or  this  country, 
although  the  Indiana  court  affirmed  it  in  Price  v.  Baker,  41  Ind.  572. 

In  New  York,  the  rule  is  stated  by  Judge  Folger,  in  People  v.  Clute,  50  N.  Y. 
451, 466 :  —  "  We  think  that  the  rule  is  this  :  the  existence  of  the  fact  which  disquali- 
fies, and  of  the  law  which  makes  that  fact  operate  to  disqualify,  must  be  brought  home 
60  closely  and  so  clearly  to  Jhe  knowledge  or  notice  of  the  elector,  as  that,  to  give  his 


286  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

The  principal  argument  presented  by  the  petitioners,  Davis  and 
others,  and  Rauliin  and  others,  for  a  new  election,  was  that  the 

vote  therewith,  indicates  an  intent  to  waste  it.  The  knowledge  must  be  such,  or 
the  notice  brought  so  home,  as  to  imply  a  wilfulness  in  acting,  when  action  is  in 
opposition  to  the  natural  impulse  to  save  the  vote  and  make  it  effectual.  lie  must 
act  so  in  defiance  of  both  the  law  and  the  fact,  and  so  in  opposition  to  his  own  better 
knowledge,  that  he  has  no  right  to  complain  of  the  loss  of  his  franchise,  the  exercise 

of  which  he  has  wantonly  misapplied It  is  much  to  presume  ....  that  any 

considerable  body  of  electors  will  purposely  so  exercise  their  right  of  electing  to 
office,  as  that  it  shall  be  but  an  empty  form  ;  and  that,  going  through  with  outward 
signs  of  an  election,  they  will,  of  intent,  so  cast  their  ballots  as  that  they  will  be 
votes  wasted."  The  other  American  authorities  go  even  farther,  in  recognizing  the 
common-sense  presumption,  that,  when  a  voter  goes  to  the  polls,  and  votes  for  actual 
persons,  although  such  persons  may  be  ineligible,  he  does  not  intenJ  to  cast  a  blank 
vote, but  does  intend,  at  least,  that  the  vote  shall  count  against  the  opposing  candidates. 
In  California,  the  court  say  :  — "An  election  is  the  deliberate  choice  of  a  majority, 
or  plurality,  of  the  electoral  body.  This  is  evidenced  by  the  votes  of  the  electors. 
But  if  a  majority  of  those  voting,  by  mistake  of  law  or  fact,  happen  to  cast  their 
votes  upon  an  ineligible  candidate,  it  by  no  means  follows,  that  the  next  to  him  on 
the  poll  should  receive  the  office.  If  this  be  so,  a  candidate  might  be  elected,  who 
received  only  a  small  portion  of  the  votes,  and  who  never  could  have  been  elected 
at  all,  but  for  this  mistake.  The  votes  are  not  less  legal  votes,  because  given  to  a 
person  in  whose  behalf  they  cannot  be  counted,  and  the  person  who  is  the  next  to 
him,  on  the  list  of  candidates,  does  not  receive  a  plurality  of  votes  because  his  com- 
petitor was  ineligible.  The  vote*  cast  for  the  latter,  it  is  true,  cannot  be  counted  for 
him  ;  but  that  is  no  reason  why  they  should,  in  effect,  be  counted  for  the  former, 
who,  possibly,  could  never  have  received  them.  It  is  fairer,  more  just,  and  more 
consistent  with  the  theory  of  our  institutions,  to  hold  the  votes  so  cast,  as  merely 
ineffectual  for  the  purpose  of  an  election,  than  to  give  them  the  effect  of  disappoint- 
ing the  popular  will,  and  electing  to  office  a  man  whose  pretentions  the  people  had 
designed  to  reject."  Saunders  v.  Haynes,  13  Cal.  145, 153.  Affirmed  in  Satterlee  v. 
San  Francisco,  23  lb.  314 ;  Craioford  v.  Dunbar,  52  76.  36. 

The  other  states,  in  which  the  question  has  been  raised  in  court,  affirm  the  rule :  — 
For  Maine,  see  Opinion  of  Justices,  38  Me.  597  ;— Pennsylvania,  People  v.  Cluley,  56 
Penn.  270 ;  where  Mr.  Justice  Stroiig  said :  "  The  votes  cast  at  an  election,  for  a 
person  who  is  disqualified  from  holding  an  office,  are  not  nullities;  they  cannot  be 
rejected  by  the  inspectors,  or  thrown  out  of  the  count  by  the  return  judges ;  the  dis- 
qualified person  is  a  person  still,  and  every  vote  thrown  for  him  is  formal  " ;  —  New 
Jersey,  State  v.  Anderson,  1  Coxe,  N.  J.  318; —  Wisconsin,  State  v.  Giles,  1  Chand. 
(Wis.)  112;  Statex.  Smith,  14  Wis.  497;  State  v.  Tiernei/,  23  lb.  430 ; —  Michigan, 
People  V.  Molitor,  23  Mich.  341 ;  -  Minnesota,  Barnum  v.  Oilman,  27  Minn.  466;  — 
Missouri,  State  v.  Vail,. 53  Mo.  97 ;  State  v.  Walsh,!  Mo.  App.  Cases,  142;  where  the 
candidate  elected  had  died  on  the  morning  of  the  day  of  election,  and  the  court  held, 
notwithstanding,  that  the  opposing  candidate  was  not  entitled  to  the  office;  — West 
Virginia,  Dri/den  v.  Swinburne,  20  W.  Virg.  89 ;  —  Kentucky,  Stephens  v.  JVyaff,  16  B. 
Mon.  542 ;  —  .Mississippi,  Sublett  v.  Bedwell,  47  Miss.  266 ;— Louisiana,  Ftsh  v.  Collins, 
21  La.  An.  289 ;  —  Arkansas,  Stoepston  v.  Barton,  39  Ark.  549.  In  Congress,  the  same 
rule,  recognized  in  Smith  v.  Brown,  2  Bartlctt  Cong.  Election  Cases,  395,  referred  to 
in  the  above  report  of  the  committee,  has  been  followed  and  reaffirmed  in  Maxivell 
V.  Cannon,  Smith  Cong.  Election  Cases,  182,  and  in  the  recent  case  (1882)  of  Can- 
non \.  Campbell,  2  Ellsworth  Cong.  Election  Cases,  604;  where  the  house  foimd 
that  Cannon,  who  received  a  large  majority  of  the  votes  (over  17,000  majority)  for 
delegate  to  Congress  from  Utah,  should  be  excluded,  because  he  had  plural  wives, 
but  that  the  opposing  candidate,  to  whom  the  certificate  ot  election  had  been  given, 
was  not  entitled  to  the  seat,  as  he  had  received  only  a  minority  of  the  votes  cast  at 
the  election.] 


BOWKER,    PET.      HOUSE,    1876.  287 

people  of  the  district  are  entitled  to  their  full  representation,  and 
cannot  justly  be  deprived  of  it ;  that,  in  view  of  the  authorities, 
the  vacant  seat  cannot  be  given  to  either  of  the  claimants,  and  that 
it  can  be  properly  filled  only  by  an  election.  This  argument  is 
undoubtedly  of  some  force.  On  the  other  hand,  it  may  be  said,  that 
the  district  has  now  in  the  house  two  of  the  three  representatives 
to  which  it  is  entitled  ;  and  that,  under  the  peculiar  circumstances 
of  this  case,  some  difficulties  lie  in  the  way  of  a  new  election.  At 
the  time  of  the  election,  in  Noven\ber,  1875,  ward  5,  in  the  city  of 
Boston,  constituted  the  fifth  Sufl'olli  representative  district.  The 
authority  of  the  officers  of  that  ward,  whose  duty  it  was  by  law, 
to  conduct  and  make  return  of  the  election  of  representatives,  as 
of  other  officers,  expired  Dec.  13,  1875,  under  chap.  243,  sect.  3,  of 
the  Acts  of  1875.  By  an  ordinance  of  the  city  of  Boston,  approved 
Nov.  16,  1875,  a  new  division  of  wards  was  made,  throughout  the 
city.  The  territory  of  the  old  ward  5  was  divided  among  four 
different  wards  of  the  new  establishment.  The  ordinance  con- 
tained no  saving  clause,  for  any  purpose.  The  combined  effect  of 
the  statute  and  ordinance  was  to  abolish  the  old  ward  5,  with  all 
its  political  incidence.  It  is  manifest,  therefore,  that  a  new  election 
of  representative  in  the  fifth  Suffolk  district  cannot  be  had,  except 
by  virtue  of  an  act  of  the  legislature,  providing  for  the  registration 
of  voters,  the  establishment  of  a  polling-place,  the  appointment  of 
officers  to  conduct  and  make  return  of  the  election,  etc.  To  pass 
such  an  act  and  carry  it  into  effect,  would  be  a  work  of  some 
time,  and  it  is  hardly  probable  that  the  person  returned  could  take 
his  seat  until  near  the  end  of  the  present  session. 

No  particular  rule  seems  ever  to  have  been  adopted  or  settled 
upon  by  the  house,  in  relation  to  ordering  a  new  election  in  case 
of  a  vacanc3\  It  has  frequently  been  done,  and  perhaps  as  fre- 
quently left  undone.  The  cases  in  which  the  house  has  omitted 
to  proceed  for  a  new  election  appear  to  rest  upon  a  great  variety  of 
reasons,  and  are  too  numerous  to  be  cited  here. 

It  was  stated  at  the  hearing,  by  counsel  for  the  petitioners, 
Davis  and  others,  and  Rankin  and  others,  that  they  would  be  con- 
tent to  abandon  their  petitions,  in  case  the  committee  came  to  the 
conclusion  that  the  seat  could  not  be  given  to  either  of  the 
claimants. 

Having  suggested  the  arguments  for  and  against  a  new  election, 
so  far  as  they  apprehend  them,  the  committee  prefer  to  leave  the 
determination  of  the  matter  entirely  to  the  judgment  of  the  house  ; 
and  for  the  purpose  of  presenting  the  question,  they  report  that  the 
petitioners,  Davis- and  others,  and  Rankin   and   others,  and   the 


288  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

remonstrants,    Gay   and   others,    severally   have   leave    to    with- 
draw. 
Mr.  Dean,  of  the  committee,  does  not  concur  in  the  report. 

[A  minority  report  was  made  hy  Mr.  Dean.     The  report  of  the 
majority  of  the  committee  was  accepted.     H.  J.,  1876,  p.  284.] 


HOUSE  — COMMITTEE     ON    ELECTIONS,    1877. 

Messrs.  Hosea  M.  Kxowltox  of  New  Bedford,  Chairman;  Isaac  Wixs- 
Low  of  Middleborough,  William  W.  Wilde  of  Concord,  Thomas  M. 
Babsox  of  Boston,  Charles  H.  Ixgalls  of  No.  Adams,  John  C.  Peruy 
of  Springfield  and  Darius  Pierce  of  Methuen. 


Elijah  A.  Morse  v.  Thomas  Lonergan. 

House  Document,  No.  9.    January  19,  1877.     Report  by  T.  M.  Babsox. 

Recount  of  Votes  refused.  The  facts,  that  the  sitting  member  was  returned  as 
elected  by  only  eleven  plurality ;  that  as  the  votes  were  first  announced,  in  one  of  the 
towns  m  the  district,  he  had  but  seven  plurality,  and  that,  owing  to  a  scarcity  of 
printed  ballots  in  that  town,  many  of  the  votes  for  the  petitioner  were  written  in  lead 
pencil ;  —  are  not  sufficient  grounds  for  a  recount  of  the  votes  by  the  house  of  repre- 
sentatives. 

Rule  in  Burt  v.  Babbitt,  ante,  p.  174,  afiJirmed. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Elijah  A.  Morse,  contestant  for  the  seat  now  occupied  by 
Thomas  Lonergan,  from  the  fourth  Norfolk  district,  asking  that 
the  votes  of  said  district  be  recounted,  have  duly  considered  the 
same,  and  report  as  follows  :  — 

The  committee  have  been  governed  in  their  decision  in  this 
case  by  the  rule  adopted  by  former  committees  on  elections,  and 
which  rule  has  been  endorsed  by  different  houses  of  representatives. 
The  rule  referred  to  is  this  :  that  in  the  absence  of  any  evidence  of 
fraud  in  the  manner  of  calling,  holding  or  conducting  the  meet- 
ing, at  which  the  election  is  held,  or  in  the  manner  of  ascertain- 
ing the  result  of  the  election,  or  unless  the  petitioner  shows  a  rea- 
sonable ground  for  supposing  an  error  in  the  count,  other  than  the 
mere  closeness  of  the  vote,  the  committee  will  not  recount  the  bal- 


Mc GIBBONS   V.    WALDEN.       HOUSE,    1877.  289 

lots.  The  only  evidence  offered  before  j-our  committee,  in  support 
of  the  contestant's  claim,  other  than  the  fact  that  there  is  a  differ- 
ence of  but  eleven  votes,  between  the  number  of  ballots  cast  for 
the  sitting  member  and  those  cast  for  the  petitioner,  consisted  in 
the  statement  of  the  petitioner,  that,  as  the  vote  was  first  announced 
in  Milton  (one  of  the  towns  in  the  fourth  Norfolk  district),  the 
sitting  member  had  only  seven  plurality,  and  that,  owing  to  a 
scarcity  of  printed  ballots  in  Milton,  many  of  the  votes  for  the 
petitioner  had  his  name  written  in  lead-pencil.  As  the  committee 
did  not  see  any  reason  why  written  ballots  could  not  be  counted  as 
correctly  as  printed  ones,  and  as  a  plurality  of  seven  would  have 
been  as  effectual  for  the  sitting  member  as  a  plurality  of  eleven, 
they  are  of  opinion  that  these  facts,  if  true,  did  not  take  the  case 
out  of  the  operation  of  the  above  stated  rule.  The  committee, 
therefore,  are  of  opinion  that  the  sitting  member  is  entitled  to  his 
seat,  and  recommend  that  the  petitioner  have  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1877,  p.  71. 
A  motion  to  reconsider  the  acceptance  of  the  report  was  laid  on  the 
table,  and  afterwards  taken  up,  and  rejected,     lb.,  p.  79.] 


S.  S.  McGiBBONS  V.  Edwin  Walden. 

House  Document,  No.  27.  January  24,  1877.  Report  by  Messrs.  Kxowl- 
TON,  WiNSLOw,  Pierce  and  Perry,  —  Messrs.  Babson,  Wilde  and 
Ingalls  dissenting  , 

Recount  of  Votes  refused.  The  fact  that  the  sitting  member  was  returned  in  a 
district,  composed  of  a  ward  in  a  city,  as  elected  by  a  plurality  of  one  or  two  votes; 
that,  within  the  proper  time,  ten  citizens  petitioned  the  aldermen  for  a  recount,  which 
was  refused  upon  very  technical,  if  not  insufficient,  grounds;  and  that  the  final 
return  of  the  vote,  by  the  ward  officers,  differed  from  the  first  declaration  of  the 
vote,  was  held,  by  a  majority  of  the  committee,  as  insufficient  to  justify  a  recount  of 
the  votes  by  the  house  of  representatives,  in  view  bf  the  fact  that,  after  the  first 
count,  and  declaration  of  the  vote,  upon  a  doubt  as  to  its  accuracy,  all  the  votes  for 
representative  were  carefully  recounted,  by  all  the  ward  officers,  and  the  result 
found  as  finally  returned. 

Mistake  in  Navie  of  Candidate.  It  was  decided,  upon  the  evidence,  that  a  vote 
for  "Edwin  Waldron"  should  be  counted  for  Edwin  Walden. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  S.  S.  McGibbons  and  others,  asking  for  a  recount  of  the  votes 


290  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

for  representative  in  the  eleventh  Essex  district,  being  the  district 
now  represented  by  Edwin  Walden  of  Lynn,  having  considered  the 
same,  submit  the  Vollowing  report :  The  grounds  upon  which  the 
petitioners  asked  for  a  recount  were,  that  the  petitioners  ha(l 
"  reason  to  believe  that,  through  mistake  in  counting  the  votes  for 
representative,  in  said  district,  on  the  7th  day  of  November  last, 
Edwin  Walden  was  erroneously  declared  elected,  in  place  of  Harris 
O.  Chadwell,  whom  they  believe  to  have  been. legally  elected." 
The  question  thus  presented  to  the  committee  was,  simply,  whether 
there  was  a  "mistake  in  counting  the  votes  for  representative"; 
and  upon  this  question  the  parties  and  their  evidence  were  fully 

heard. 

The  eleventh  district  consists  of  ward  6,  in  Lynn,  and  elects  one 
representative.  The  official  return  of  the  votes  for  representative 
was  admitted  to  be  as  follows  :  — 

Edwin  Walden 547 

Harris  O.  Chadwell, 546 

Scattering, 18 

One  of  the  scattering  votes  was  for  Edwin  Waldron,  and,  upon 
the  evidence  before  them,  the  committee  do  not  doubt  that  that 
vote  should  be  counted  for  the  sitting  member,  this  giving  him,  ' 
upon  the  returns,  a  plurality  of  two  votes  over  the  contestant. 

The  petitioners,  to  establish  their  case,  relied  upon  the  following 
facts,  which  were  not  disputed  :  — 

1.    That  the  vote  was  very  close. 

2  That  the  announcement  made  by  the  warden,  at  the  close  of 
the  balloting,  was  as  follows  :  — 

Walden, 552 

Chadwell, 541 

with  scattering  votes  ;  while  the  figures  as  finally  arrived  at  as  the 
official  return,  were  the  result  of  a  recount;  thus  showing  a  wide 
discrepancy  in  the  result  of  the  two  counts,  leading,  apparently,  to 
the  conclusion  that  the  count  of  the  ward  officers  was  unreliable. 

3.  That  within  three  days  after  the  day  of  election,  more  than 
ten  citizens  of  the  ward  petitioned  for  a  recount  of  the  votes,  by 
the  mayor  and  aldermen,  under  the  provisions  of  the  statutes  ;  and 
a  recount  was  denied  them,  under  the  advice  of  the  city  solicitor  of 
Lynn,  upon  grounds  which  the  committee  think  were  technical  in 
the  extreme. 

In  regard  to  the  first  ground  relied  upon,  to  wit,  the  closeness 
of  the  vote,  the  committee  are  unanimously  of  the  opinion  that 
such  a  fact,  of  itself,  constitutes  no  ground  for  a  recount  by  the 


Mc GIBBONS   V.    WALDEN.      HOUSE,    1877.  291 

legislature.  It  is  believed  that  the  presumption  is  in  favor  of  the 
accuracy  of  the  constituted  officers,  whose  duty  it  is  to  count  the 
votes,  and  that,  unless  facts  or  circumstances  are  shown,  which 
tend  to  throw  some  reasonable  doubt  upon  the  correctness  of  their 
work,  the  committee  are  not  called  upon  to  reopen  the  matter,  and 
recount  the  votes,  simplj-  because  the  contestant  came  very  near 
being  elected.  They  are  led  to  this  conclusion,  not  only  upon  the 
principles  already  stated,  but  also  upon  consideration  of  the  prob- 
abilit}^  that,  if  it  were  once  admitted,  as  a  sound  rule,  that  anybody 
who  ran  xevy  close  to  his  successful  competitor  could  come  to  the 
committee  on  elections  of  the  legislature,  as  a  sort  of  appellate 
returning  board,  future  committees  would  be  overburdened  with 
petitions  of  that  character.  This  view  has  been  uniformly  sus- 
tained, by  previous  legislatures,  and  has  been  substantially  adopted 
b}'  this  house,  in  the  case  of  Morse  v.  Lonergan,  ante  p.  288.  Your 
committee,  therefore,  are  of  the  opinion  that  the  fact  that  the 
sitting  member  appears  to  have  received  but  one  or  two  votes  more 
than  the  contestant,  furnishes  no  ground  whatever  for  a  recount  by 
the  committee.  . 

The  same  considerations  appear  to  dispose  of  the  third  ground 
upon  which  it  is  alleged  a  recount  should  be  had  here.  Granting, 
for  the  moment,  that  the  mayor  and  aldermen  were  unwise  in  re- 
fusing the  petition  of  the  citizens  for  a  recount,  the  committee  do 
not  think  that  fact  of  itself  furnishes  any  ground  for  its  action  at 
this  time.  It  would  undoubtedly  have  been  much  better,  so  far  as 
the  committee  are  able  to  judge,  for  the  mayor  and  aldermen  to 
have  granted  the  petition,  and  not  to  have  iuquii'ed  too  closely  into 
the  form  of  the  petition,  thus  following  the  practice  of  nearly  all, 
if  not  all,  the  cities  in  the  Commonwealth,  in  such  matters ;  but 
the  committee  do  not,  for  that  reason,  consider  that  it  is  a  part  of 
their  duty  to  supply'  the  omissions  of  other  bodies,  or  avenge  or 
redress  the  grievances  which  parties  may  have  sustained  at  their 
hands,  considered  simply  as  such.  To  ascertain  who  has  been 
legally  and  truly  elected  to  the  house  of  representatives,  in  such 
cases  as  are  referred  to  them,  is  the  sole  duty  of  this  committee, 
and  unless  there  is  evidence  tending  to  satisfy  the  committee  that 
there  has  been,  on  the  one  hand,  fraud  or  illegality,  in  the  manner  of 
calling,  holding  or  conducting  the  election,  or,  on  the  other  hand, 
that  there  may  have  been  an  error  in  the  count,  the  return  of  the 
duly  constituted  officers  is  not  to  be  disturbed. 

Having  disposed  of  the  first  and  third  grounds  alleged  for  a 
recount,  it  remains  to  consider  the  second  allegation,  to  wit,  that 
different  statements  were  made,  at  various  times,  b}'  the  ward  offi- 
cers, as  to  the  result  of  the  vote,  and  that,  therefore,  no  substan- 


292  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

tial  reliance  is  to  be  placed  upon  their  count.  On  this  point  the 
committee  had  before  them  the  warden,  two  of  the  three  inspect- 
ors, and  the  clerk,  as  witnesses,  one  at  least  of  whom  was  of  the 
same  political  predilections  as  the  contestant.  The}' all  testified 
fully,  as  to  the  counting  and  recounting  of  the  votes  for  represen- 
tative, and,  so  far  as  their  testimony  agreed,  it  was  as  follows  : 
At  intervals  during  the  day,  the  votes  were  taken  from  the  ballot- 
box  and  sorted  and  counted  b}'  the  clerk  and  one  of  the  inspectors, 
so  that,  at  the  close  of  the  balloting,  the  tickets,  except  a  few 
then  remaining  in  the  boxes,  had  been  all  assorted  into  packages, 
as  regular  republican,  regular  democratic,  and  scattering,  and 
counted,  and  the  vote  was  at  first  declared  from  this  count,  to 
wit :  — 

Walden, 552 

Chadwell, 541 

with  a  number  of  scattering  votes. 

Before  completing  the  count  of  the  ticket,  however,  it  was  dis- 
covered that  some  votes  had  been  classed  as  regular  republican, 
that  were  what  the  witnesses  called  "  spurious,"  or  *'  counterfeit"  ; 
that  is,  they  were  tickets  precisel}'  similar,  in  form  and  appearance, 
to  the  other  tickets,  except  that  the}-  had  Chadwell's  name  instead 
of  Walden's.  A  number  of  these  were  found,  which  had  been 
classed  as  straight  republican, — enough,  if  counted  correctly,  to 
have  elected  Chadwell  instead  of  Walden.  Some  other  errors  were 
discovered,  in  Mr.  Walden's  favor,  though,  on  this  point,  as  to  the 
number  of  errors  discovered,  the  witnesses  remembered  differently, 
or  did  not  remember  at  all.  In  consequence  of  these  errors,  the 
ward  officers  determined  to  recount  the  whole  vote  for  representa- 
tive. Accordingly,  after  completing  the  count  for  the  remainder 
of  the  ticket,  the  ward  officers  took  the  ballots,  for  the  purpose  of 
recounting,  carefully  and  deliberately,  the  votes  for  representative. 
The  ballots  were  first  assorted,  in  a  number  of  different  sized  pack- 
ages, each  package,  however,  containing  but  one  kind  of  votes. 
Thereupon,  all  being  seated  around  a  table,  one  of  the  inspectors, 
Mr.  Skinner,  first  took  the  packages,  counted  the  votes  in  each 
package,  examining  each  vote  in  reference  to  the  name  of  the  can- 
didate for  representative  upon  it ;  and  having  marked  the  number 
of  votes  in  each  package,  on  the  back  of  the  i)ackage,  passed  it  to 
another  of  the  inspectors,  for  his  examination.  This  second  in- 
spector thereupon  counted  the  packages  separately,  as  he  received 
them  from  the  former,  and,  finding  the  classification  and  the  num- 
ber correct,  passed  the  packages,  as  he  counted  them,  to  the  third 
inspector.     The  third  inspector  (the  only  officer  not  present  before 


McGIBBONS    V.    WALDEN.       HOUSE,    1877.  293 

this  committee)  counted  the  packages,  in  the  same  manner  as  the 
others,  and  passed  them  to  the  warden,  who,  with  the  clerk  look- 
ing on,  counted  the  packages  over,  as  the  others  had  done  ;  and 
finding  their  count  correct,  the  clerk  set  down  the  numbers,  and, 
by  adding,  arrived  at  the  figures  already  given  as  the  official  return 
of  the  vote.  The  original  paper,  on  which  the  figures  were  set 
down,  was  produced  before  the  committee,  showing  the  computa- 
tion to  be  correct. 

On  all  these  facts,  the  witnesses  (comprising  all  the  ward  officers, 
excepting  one  inspector)  substantially  agreed  ;  and  all  of  them 
furthermore  stated,  that  they  had  no  doubt  the  count  was  correct ; 
and  each  one  stated  that  he  individually  satisfied  himself  of  the 
correctness  of  the  count,  being  led  to  do  so  on  account  of  the 
discrepancies  appearing  after  the  first  announcement.  As  to  the 
number  of  the  "spurious"  ballots  found,  the}^  did  not  remember 
alike ;  and  no  one  of  the  witnesses  was  able  to  state  the  errors 
found,  so  as  to  account  for  the  change  from  the  first  announcement 
to  the  second ;  although  some  of  the  witnesses  remembered  errors 
in  the  first  summing  up,  that  escaped  either  the  attention  or  the 
memorj'  of  the  others.  But  they  all  agreed  that  the  errors  were 
such  that  they  unanimously  decided  to  recount,  which  they  did,  in 
the  verj^  careful  manner  alreadj^  described,  and  with  especial  and 
sole  reference  to  the  vote  for  representative.  The  inspector  who 
counted  and  marked  the  packages,  on  cross-examination,  could  not 
swear  positively  as  to  the  particular  manner  in  which  he  marked  the 
packages,  after  counting  them,  and  whether  he  did  not,  in  some 
instances,  use  the  marks  already  on  the  packages,  when  they  were 
right ;  but  he  was  certain  that  he  indicated,  in  some  plain  way,  the 
number  of  the  votes,  for  the  guidance  of  those  who  counted  after 
him. 

On  these  facts,  the  majority  of  the  committee  do  not  see  that  there 
is  probable  ground  for  believing  that  the  count,  as  finally  made, 
was  not  correct.  On  the  contrary,  it  appears  to  them,  that  no 
fairer,  better,  more  careful,  or  more  impartial  count  could  be  had. 
It  was  not  the  case  of  the  simple  discharge,  by  the  officers  of  the 
precinct,  of  an  official  duty,  where  ordinary  care  only  was  exercised. 
It  was,  substantially,  four  separate  and  independent  counts,  by  each 
one  of  the  ward  officers,  made  under  circumstances  that  were  a 
guarantee  of  the  care  and  accurac}^  of  each.  It  appears  that,  after 
the  discovery  of  the  "  spurious"  ballots,  the  reports  had  somehow 
gained  currency,  that  Chad  well  was  elected,  while  their  first  an- 
nouncement had  elected  Walden.  In  view,  therefore,  of  the  un- 
certainty in  the  popular  mind,  to  correct  their  own  errors,  and  to 
get  the  vote,  if  possible,  right,  they  set  to  work  deliberately,  after 


294  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

finishing  their  other  work,  to  recount  the  vote.  They  represented 
the  different  political  parties,  and  were  apparently  animated  solely 
by  a  desire  to  ascertain  the  truth.  Each  one  counted  all  the  ballots 
for  himself,  and  they  all  agreed  as  to  the  result.  Care  could  not 
go  further ;  and  it  is  not  presumable  that  this  committee  would  be 
any  more  liliely  to  arrive  at  the  truth,  than  were  those  five  officers, 
against  whom  was  imputed,  at  the  hearing,  not  the  slightest  sus- 
pkiion  of  fraud,  unfairness,  or  prejudice.  It  would  be  simply 
putting  the  count  of  seven  members  of  this  legislature  over  the 
count  of  the  five  officers  of  the  ward,  which,  under  the  circumstances, 
there  does  not  seem  to  be  any  sound  reason  for  doing. 

It  is  the  duty  of  the  committee  to  see  that  justice  is  done  all 
parties ;  but  this  includes  the  sitting  member,  as  well  as  the  con- 
testant ;  and  it  does  not  seem  to  the  committee  just  to  a  sitting 
member,  to  subject  the  question  of  his  right  to  a  seat,  when  that 
question  is  merely  one  of  computation,  to  a  committee  of  this  house, 
and  when  that  committee  cannot  show  themselves  to  be  likely  to  be 
more  fair,  more  careful,  or  more  impartial,  in  coming  to  their  conclu- 
sions, than  was  the  board  charged  by  law  with  determining  the  result. 

The  majority  of  the  committee,  therefore,  believing  that  justice 
will  not  be  promoted  by  a  recount,  recommend  that  the  petitioners 
have  leave  to  withdraw. 

[A  minority  report  in  favor  of  recounting  the  votes  for  repre- 
sentative was  submitted  by  Messrs.  Babson,  Wilde,  and  Ingalls.  A 
motion  to  substitute  the  minority  report,  for  that  of  the  majority, 
was  lost  by  a  vote  of  77  yeas  to  95  nays.  H.  J.,  1877,  p.  105.  The 
report  of  the  committee  was  then  accepted,  lb.  p.  105.  A  motion 
to  reconsider  the  acceptance  of  the  report  was  lost,  by  a  vote  of 
85  yeas  to  108  na3's.     Ih.  p.  109.] 


Francis  P.  Merriam  v.  Francis  E.  Batchelder. 

House  Document,  No.  33.     January  29,  1877.     Report  by  W.  W.  Wilde. 

Mistake  in  Name  of  Candidate.  Votes  for  "  F.  P.  Merriiim  of  Middleton  "  will  be 
counted  for  Francis  P.  Merriam  of  Middleton,  in  an  election  controversy,  upon  proof 
tliat  the  latter  is  the  only  voter  of  the  name  in  Middleton  ;  was  nominated  under  the 
name  of  "  F.  P.  Merriam ;  "  and  that,  at  the  election,  his  initials  were  used  in  one 
town,  on  account  of  doubt  as  to  his  Christian  name. 


MERRIAM   V.    BATCHELDER.       HOUSE,    1877.  295 

Eligibility.  Inhabitancy.  A  representative,  who  was  born,  always  lived,  been 
assessed,  and  voted,  in  the  town  from  which  he  was  elected,  owning  and  occupying, 
with  his  family,  a  home  there,  from  which  he  had  no  intention  of  removing,  but 
always  considered  it  his  home,  will  not  be  held  to  have  changed  his  domicile,  and 
become  ineligible  to  election,  because  for  two  winters  he  has,  with  his  family,  lived 
in  a  house  in  Boston,  belonging  to  his  wife  and  her  brother,  and,  during  his  stay, 
has  kept  house  there  with  his  brother-in-law. 

Russell  II.  Conwell  for  petitioner. 

Israel  W.  Andrews  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  F.  P.  Merriam,  for  the  seat  in  this  house  now  occupied  by 
Francis  E.  Batchelder,  having  duly  considered  the  same,  submit  the 
following  report :  The  district  in  question  is  the  thirteenth  Essex 
district,  comprising  the  towns  of  Middleton,  Topsfleld,  Saugus  and 
Lynnfleld,  electing  one  representative.  The  total  A^ote  of  this 
district  for  representative,  was  as  follows  :  — 

Francis  P.  Merriam  of  Middleton  had  .  .  .  386 
F.  P.  Merriam  of  Middleton  had  ....  263 
Francis  E.  Batchelder  of  Middleton  had  .         .         .         402 

The  votes  for  F.  P.  Merriam  were  all  cast  in  the  town  of  Saugus, 
and  there  was  abundant  evidence,  tending  to  show  that  Francis  P. 
Merriam  of  Middleton  was  the  person  intended.  It  appeared  that 
Francis  P.  Merriam  of  Middleton,  the  contestant,  is  well  known  in 
the  district ;  is  the  onl}-  voter  of  that  name  in  the  town  of  Middleton, 
and  was  nominated  under  the  name  of  F.  P.  Merriam  at  the  caucus 
of  the  party  upon  whose  tickets  his  name  was  voted  ;  and  that  there 
was  no  other  person  in  Middleton  named  Merriam,  except  James 
M.  Merriam,  the  brother  of  the  contestant.  It  was  also  shown, 
that  the  use  of  the  initial,  instead  of  the  first  name,  Francis.,  in 
Saugus,  was  in  consequence  of  a  doubt  as  to  what  the  contestant's 
first  name  really'  was. 

This  evidence  was  not  disputed,  and  upon  it  the  committee  think 
there  can  be  no  doubt  that  the  votes  for  F.  P.  Merriam  should  be 
counted  for  the  contestant,  thus  giving  him  a  majority  of  247  over 
the  sitting  member,  and  clearly  entitling  him  to  represent  the 
district. 

The  sitting  member  contended,  that  the  contestant  was  not 
eligible,  b}-  reason  of  non-residence,  and  introduced  evidence  to 
show  that  the  contestant,  during  the  past  two  winters,  has  come  to 
Boston,  with  his  family,  stopping  at  a  house  on  Newbur3'  Street, 
belonging  to  his  wife  and  his  brother-in-law  jointly  ;  he  and  his 
brother-in-law  keeping  house  together.  And  it  appeared  that, 
during  the  past  year,  his  family  had  passed  the  greater  portion  of 


296  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

their  time  in  this  house.  But,  on  the  other  hand,  it  was  proved  by 
the  contestant,  that  he  was  born  and  has  always  lived  in  Middle- 
ton  ;  that  he  has  voted  there  for  twenty-eight  years,  including  the 
last  election ;  was  assessed  there  ;  owned  and  occupied,  and  still 
owns  and  occupies,  with  his  family,  a  house  there ;  and  he  himself 
testified,  that  he  had  never  had  any  intention  whatever  of  leaving 
Middleton  ;  and  that  his  home  was  still  there,  as  it  always  had 
been. 

On  all  the  evidence,  the  committee  thought  there  was  no  doubt 
that  the  contestant  was,  and  is,  a  resident  of  Middleton,  and 
eligfible  to  the  office. 

The  committee  therefore  unanimously  report  the  accompanying 
resolution. 

[The  resolution  declared  that  the  petitioner  was  entitled  to  the 
seat.  The  resolution  was  adopted.  H.  J.,  1877,  p.  117.  Mr. 
Merriam  qualified,  and  took  the  seat.     76.,  p.  128.] 


George  F.  Scribner  v.  Patrick  Keyes. 

House  Document,   No.  52.     February  7,  1877.     Report  by  Thomas  M. 
Babson,  —  Mr.  WiNSLOW  dissenting. 

Recount  of  Votes  refused.  The  fact  that,  at  the  city  election,  immediately  follow- 
ing the  election  of  representative,  a  recount  of  votes  for  certain  city  ofBcers  was 
made  by  the  aldermen,  and  showed  that  few,  if  any,  of  the  returns  made  by  the 
ward  officers  at  such  city  election,  were  correct,  and  that,  at  the  election  of  repre- 
sentative, in  some  cases  partial  counts  of  votes  were  made,  by  one  ward  officer, 
and  were  not  verified  by  any  of  his  associates,  is  insufficient  ground  even  if  proved, 
for  a  recount  of  votes  for  representative,  by  the  house  of  representatives. 

Eli'jibiUty.  Inhabitancy.  Where  the  representative  returned  had  lived,  with  his 
family,  in  a  tenement  over  a  store  owned  by  him  in  the  district,  and,  in  July  previous 
to  his  election,  had  moved  his  family  and  furniture  into  a  house  owned  by  him  in 
the  country,  outside  the  district,  moving  there  on  account  of  the  health  of  his  family, 
letting  his  former  tenement,  but  with  the  right  to  resume  it  in  the  fall,  remaining  in 
the  country  until  the  last  of  October,  when  he  returned,  with  his  family,  and  occu- 
pied another  tenement  in  the  same  l)uilding,  never  intending  to  change  his  residence, 
but  merely  to  spend  the  summer  in  the  country,  it  was  held,  that  he  remained  an 
inhabitant  of  the  district  from  which  he  was  elected,  and  was  eligible  to  election. 

Practice.  Qumre :  whether,  under  a  petition  for  a  seat  as  representative,  not  ask- 
ing for  a  recount  of  votes,  the  petitioner  can,  at  the  hearing,  request  such  a  recount. 

Charles  Cowley  for  petitioner. 
Theo.  H.  SwEETziiR  for  sitting  member. 


SCEIBNER   V.    KEYES.      HOUSE,    1877.  297 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  George  F.  Scribuer,  for  the  seat  of  representative  from  the 
twentieth  Middlesex  district,  now  occupied  by  Patrick  Kcycs,  and 
a  petition  in  aid  of  the  same,  have  duly  considered  the  same,  and 
report  as  follows :  The  petitioner,  in  support  of  his  claim  that  said 
Kej'es  was  not  legally  elected  as  representative  from  said  district 
relied  in  his  petition  on  two  grounds. 

1.  That  said  Keyes  did  not  receive  a  majority  of  the  legal  votes, 
cast  in  the  district  for  representative,  on  the  7th  day  of  Novem- 
ber, 1876. 

2.  That  said  Ke3'es  was  not  eligible  as  a  representative,  for  the 
reason  that  he  had  not  been  an  inhabitant  of  the  first  ward  in  the 
city  of  Lowell  (comprising  the  twentieth  Middlesex  district),  for 
at  least  a  year  next  preceding  his  election. 

In  support  of  his  claim,  that  Keyes  did  not  receive  a  majority  of 
the  votes  cast  in  said  ward,  at  said  election,  and  that  the  petitioner 
did,  the  counsel  for  the  petitioner  asked  the  committee  to  recount 
the  votes  cast  in  said  ward.  The  counsel  for  the  sitting  member 
objected  to  the  committee's  entertaining  such  request,  for  the 
reason  that  the  petition  did  not  ask  for  a  recount.  The  counsel 
for  the  petitioner,  being  requested  by  the  committee  to  state  on 
what  grounds  he  asked  for  a  recount,  replied  that  he  expected  to 
prove  that  after  the  city  election,  held  in  Lowell  immediately  after 
the  state  election,  a  recount  was  asked  for,  and  made  by  the  board 
of  aldermen,  and  said  I'ecount  showed  that  few,  if  an}',  of  the 
returns  of  votes  made  by  the  ward  officers,  at  said  city  election, 
proved  to  be  correct ;  and  he  also  offered  to  prove  that,  at  the 
state  election,  in  some  cases,  partial  counts  of  votes  were  made, 
by  one  ward  officer,  and  were  not  afterwards  verified  by  any  of 
his  associates.  The  committee  ruled  that,  even  if  these  facts 
were  proved,  without  proof  of  some  other  facts,  tending  to  show 
a  probable  mistake  made  in  the  count  of  votes  at  the  November 
election,  these  alone  would  not  be  sufficient  ground  for  a  recount 
by  the  committee.  This  ruling  rendered  unnecessary  a  decision 
on  the  point  raised  by  the  sitting  member.  The  petitioner,  after 
this  ruling,  oflfered  no  evidence  in  support  of  his  first  allegation. 

In  support  of  his  second  allegation,  that  Mr.  Keyes  had  not 
been  an  inhabitant  of  the  district,  for  at  least  a  year  prior  to  his 
election,  the  petitioner  called  Mr.  Southwick,  who  testified  sub- 
stantially as  follows  :  That  he  was  an  inhabitant  of  Lowell,  and 
had  known  Mr.  Keyes,  the  sitting  member,  for  many  years,  and 
was  the  opposing  candidate  to  Mr.  Keyes  in  1875,  and  was  elected 
to  the  legislature  over  Keyes,  in  that  year.  He  testified  that  he 
had  known  of  "  Keves'  Block,"  in  Lowell,  for  many  years ;  that 


298  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

it  was  on  Market  Street,  and  within  the  twentieth  Middlesex  dis- 
trict ;  that  in  the  first  story  of  this  block,  which  was  brick,  and 
owned  by  Mr.  Keyes,  Mr.  Keyes  kept  a  grocery  store,  and  that 
over  the  store  were  tenements,  occupied  by  different  families,  in 
one  of  which  Mr.  Keyes  had  lived  for  some  years,  and  in  one  of 
which  he  was  living  at  the  present  time ;  that  he  also  knew  of  a 
house  in  Pawtucketville  (which  was  out  of  the  district,  in  ward 
5),  owned  by  Mr.  Keyes  ;  that  the  house  was  a  large  white  house, 
and  had  about  an  acre  and  a  half  of  ground  around  it ;  that  Mr. 
Keyes  lived  in  this  house,  in  Pawtucketville,  during  August  and 
July,  187G  ;  and  that,  some  day  in  July,  he  met  Mr.  Keyes  in  the 
road  near  his  (Keyes')  house,  in  Pawtucketville ;  that  Keyes 
stopped  him,  and,  after  some  conversation  on  other  topics,  Mr. 
Keyes  said.  "You  will  have  an  easier  field  this  fall,  if  you  run 
for  the  legislature  again ;  you  will  have  a  weaker  candidate  than 
I  against  you  ;  I  shall  not  be  in  the  ward  to  trouble  you  any  more  ; 
I  have  moved  out  here,  and  Mr.  Durgin  will  probably  be  the 
candidate  against  you."  The  petitioner  also  called  Mr.  Hartwell, 
formerly  a  representative  from  ward  5,  in  Lowell,  who  testified 
substantially  as  follows  :  That  some  time  in  October,  just  before 
the  nominations,  he  called  on  Mr.  Keyes  at  his  (Keyes')  store, 
and  advised  him  not  to  be  a  candidate  for  the  legislature,  as  he 
could  not  hold  his  seat  if  elected,  and  that  Keyes  told  him  that 
he  moved  to  Pawtucketville  at  the  advice  of  his  physician,  and 
for  the  benefit  of  his  children's  health,  and  that  he  intended  to 
move  back  soon  ;  that  after  Keyes'  nomination  he  again  called  on 
him,  and  again  expressed  his  fears  that  he  (Keyes)  was  not  eligi- 
ble, and  referred  to  the  Shaw  case.  Keyes  replied  that  he  had 
consulted  eminent  lawyers,  in  Lowell  and  Boston,  and  that  he  was 
all  right,  and  could  hold  his  seat.  At  one  of  these  interviews,  — 
the  minutes  of  the  committee  do  not  agree  as  to  which  one,  —  Mr. 
Keyes  told  Hartwell,  that  he  had  not  moved  out  of  the  ward  ;  that 
he  only  went  to  Pawtucketville  to  pass  the  summer,  for  the  benefit 
of  his  children's  health.  The  petitioner  called  Mr.  Garrity,  who 
testified  that  he  was  a  plumber,  and  in  October,  1876,  did  some 
plumbing  at  Keyes'  house  in  Pawtucketville,  where  the  Keyes 
family  was  living  at  that  time  ;  that  while  he  was  there,  he  had  a 
conversation  witli  Mr.  Keyes  about  his  (Keyes)  being  a  candidate 
for  the  legislature,  and  told  Keyes  that  he  could  not  hold  a  seat 
in  the  house  if  elected,  and  spoke  of  the  '•  Shaw  case,"  and  Mr. 
Keyes  told  him  that  his  case  was  different  from  "  Shaw's,"  as  he 
(Keyes)  intended  to  move  back  to  his  district,  and  that  Shaw  did 
not.  The  petitioner  here  rested  his  case. 
Patrick  Keyes,  being  called,  testified  that  he  had  lived  in  that 


SCRIBNER   V.    KEYES.       HOUSE,    1877.  299 

Peart  of  Lowell  comprised  in  the  twentieth  Middlesex  district,  for 
thirty  years  ;  owned  a  brick  block  there,  witli  a  grocery  store  in 
it,  and  tenements  over  the  store  ;  said  he  had  lived  in  one  of  these 
tenements  more  than  ten  3'ears  ;  that,  on  the  2d  day  of  Jnly, 
187G,  he  moved  his  famil\'  and  furniture  to  a  house  he  owned  in 
Pawtucketville,  to  spend  the  summer ;  that  he  stayed  in  Paw- 
tucketville  until  the  last  of  October,  when  he  moved  back  to  his 
house  in  ward  I  ;  that  he  moved  to  Pawtucketville  with  the  in- 
tention of  moving  back  in  the  fall.  He  explained  his  moving  in 
July,  by  saying  that  some  of  his  children  were  sick  in  June,  and 
that  the  doctor  told  him  to  take  his  family  into  the  country  for 
the  summer ;  that  he  told  the  doctor  times  were  hard,  and  that 
he  could  not  afford  to  go  into  the  country,  but  had  a  house  in 
Paw.tucketville,  which  was  vacant,  and  he  would  go  out  there  and 
pass  the  summer ;  the  doctor  told  him  that  that  would  do,  and 
advised  him  to  go  there,  and  so  he  (Keyes)  did  so.  He  testified 
that  the  house  in  Pawtucketville,  though  only  fifteen  minutes' 
walk  from  his  store,  was  in  a  sparsely-settled  neighborhood  ;  had 
an  acre  and  more  of  ground  around  it,  and  was  near  woods,  where 
his  children  could  play.  He  testified  that  he  never  intended  to 
move  out  of  ward  1,  and  denied  that  he  had  ever  told  Southwick 
that  he  had  moved  out  of  the  ward,  but  said  he  told  him  that  he 
had  moved  to  Pawtucketville  for  the  summer,  and  afterwards  told 
Southwick  that  as  he  (Keyes)  did  not  intend  to  be  a  candidate 
the  nest  fall,  he  (Southwick)  would  have  an  easier  time  in 
getting  elected,  as  Durgin  would  probably  be  the  candidate  of 
the  democratic  party.  He  also  testified,  that  when  he  left  his 
tenement  on  Market  Street,  he  let  it  to  one  Dennis  O'Neil,  and 
arranged  with  O'Neil  that  he  (Keyes)  should  have  possession, 
whenever  he  wanted  to  move  back,  in  the  fall.  He  also  said  that 
he  did  not  let  one  room,  but  retained  it,  and  stored  in  it  trunks, 
containing  the  winter  clothing  of  the  family,  and  some  other 
articles.  On  cross-examination,  he  said  that,  when  he  did  move 
back  in  the  fall,  he  did  not  take  possession  of  the  tenement  he  let 
to  O'Neil,  but  another  tenement  in  the  same  block,  which  was 
then  vacant. 

Dr.  William  A.  Hoar,  called  by  the  sitting  member,  testified 
that  two  of  Mr.  Keyes'  children  were  sick  in  May,  and  that  he 
recommended  Keyes  to  move  out  of  town  for  the  summer,  giving 
substantially  the  conversation  as  testified  to  by  Mr.  Keyes. 

Dennis  O'Neil,  called  by  the  sitting  member,  confirmed  the  story 
as  to  the  conditional  hiring  of  the  Keyes'  house  by  him,  and  that 
he  was  to  move  out  when  Mr.  Keyes  wanted  the  tenement,  in  the 
fall.     Martin  Fay  of  Boston  testified,  that  he  went  to  Keyes'  house, 


300  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

on  Market  Street,  in  Lowell,  on  the  27th  of  June,  and  passed  the 
night  there  ;  found  Keyes  making  preparations  to  move,  and  asked 
him  where  he  was  going  to  move  to,  and  Mr.  Ke3-es  told  him  that 
he  was  iroina:  to  move  to  a  house  he  owned  in  Pawtucketville,  for 
the  summer,  for  the  health  of  his  children,  and  was  coming  back 
in  the  fall. 

The  sitting  member  also  called  Israel  Putnam  of  Chelmsford, 
and  Frank  Brady,  Oliver  Flint,  and  Mr.  Casey,  of  Lowell,  who 
testified  to  conversations  with  Keyes,  during  the  summer  of  1876, 
at  different  times  and  places,  in  all  of  which  Mr.  Keyes  announced 
his  intention  of  moving  back  to  his  old  house  in  the  fall,  and  said 
he  was  only  passing  the  summer  in  Pawtucketville,  for  the  benefit 
of  his  children's  health.  The  great  preponderance  of  evidence 
going  to  show  that  the  residence  in  Pawtucketville,  during  July, 
August,  September  and  part  of  October,  was  a  substitute  for  the 
l>assing  of  the  summer  in  the  country,  so  common  among  city 
families,  your  committee  are  of  the  opinion  that  the  sitting  member 
still  continued  to  be  an  inhabitant  of  ward  1,  during  his  temporary 
sojourn  in  Pawtucketville,  and  that  his  legal  domicile  was,  during 
that  time,  in  the  ward  from  which  he  was  elected.  The  committee, 
therefore,  report  that  the  sitting  member  is  entitled  to  his  seat, 
and  that  the  petitioner  have  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted,  H.  J.,  1877, 
p.  lo3  ] 


Abel  G.  Haynes  v.  John  Hillts. 

House  Document,  No.  64.     February  12,  1877.     Report  by  H.  M.  Know^.- 

TON,  Chairman 

Failure  of  Clerks  to  meet  within  prescribed  Time  to  ascertain  Result.  Where  the 
clerks  of  the  four  towns  composing  the  representative  district,  did  not  meet  on  the 
day  following  the  election,  to  compare  transcripts  of  the  records  of  votes,  and  ascertain 
who  was  elected,  but  two  only  of  the  four  met,  and  signed  a  certificate  in  blank, 
which  a  few  days  later  was  signed  by  another  of  the  clerks,  who  called  and  left  his 
transcript,  and  afterwards  the  fourth  clerk  appeared  and,  with  the  clerk  having  pos- 
session of  the  certificate,  filled  the  blanks  from  the  returns  of  the  several  clerks,  it 
was  held,  that  the  return  and  certificate,  so  made,  were  invalid  and  must  be  set  aside. 


HAYNES   V.    HILLIS.      HOUSE,   187?  301 

Effect  of  invalid  Certificate.  Where  the  certificate  of  an  election  is  invalid,  the 
election  is  not  necessarily  avoided,  but  the  result  may  be  ascertained  by  other 
means.  And  in  such  case,  the  result  will  be  ascertained  by  examination  of  the 
official  town  records  of  the  vote,  especially  where  the  ballots  in  three  of  the  towns 
have  been  destroyed  (no  notice  for  their  preservation  having  been  served  on  the 
clerks). 

he  Committee  on  Elections,  to  whom  was  referred  the  peti- 
tion of  Abel  G.  Haynes,  for  the  seat  in  this  house  now  occupied 
by  John  Hillis,  having  considered  the  same,  submit  the  following 
report : 

The  district  in  question  is  the  twenty-seventh  Middlesex,  com- 
prising four  towns;  viz.,  Maynard,  Wayland,  Sudbury  and 
Weston. 

The  contestant  relied  chiefly  on  the  fact,  which  he  proved  to 
the  satisfaction  of  the  committee,  that  the  clerks  of  the  several 
towns  comprising  the  district  did  not  meet,  as  required  by  law,  to 
compare  the  vote  of  the  several  towns,  and  to  issue  the  certiticate 
of  election  provided  by  law.  The  law  provides,  that  the  vote 
for  representative  in  each  town  shall  be  recorded  in  open  town 
meeting,  and  a  transcript  of  such  record  shall  be  delivered  forth- 
with to  the  clerk.  On  the  noon  of  the  day  following  the  election, 
the  clerks  shall  meet,  at  a  place  designated,  to  examine  and  com- 
pare such  transcripts,  ascertain  who  has  been  elected,  and  make 
out  certificates  of  election. 

In  this  district,  the  clerks  paid  no  attention  whatever  to  these 
plain  provisions  of  law.  They  not  only  did  not  meet  at  the 
required  time  ;  they  have  never  met  at  all.  The  designated  place 
of  meeting  was  in  Wayland.  It  appeared  that  the  Sudbury  clerk 
came  over  at  the  proper  time,  and  met  the  Wayland  clerk  ;  and, 
as  the  others  did  not  appear,  they  signed  a  certificate  in  blank, 
and  separated,  the  Wayland  clerk  keeping  the  blank.  A  few  days 
after,  the  Weston  clerk  came  and  signed  the  blank,  and  left  his 
transcript.  Last  of  all  came  the  Maynard  clerk,  and  he  and  the 
Wayland  clerk  filled  up  the  certificate,  from  the  returns  of  the 
several  clerks,  which  they  had  left  for  the  purpose.  The  wiiole 
proceedings  were  in  violation  of  the  terms  of  the  statute,  and 
indicated  a  degree  of  negligence,  on  the  part  of  some  of  the 
clerks,  that  the  committee  think  cannot  be  too  severely  cen- 
sured. 

The  necessity  for  the  observance  of  these  provisions,  and  the 
consequence  of  a  failure  therein,  were  ably  and  exhaustively  dis- 
cussed in  the  case  of  Stimpson  v.  Breed,  ante,  p.  257,  the  facts  of 
which  were  similar  to  those  of  the  present  case :  and  the  com- 


302  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

iiiittee  see  no  gronnd  to  question  the  correctness  of  the  conclu- 
sions arrived  at  therein  :  to  wit,  that  the  return  and  certificate, 
made  under  the  circumstances  above  stated,  in  direct  disregard 
of  the  provisions  of  a  peremptory  statute,  are  invalid  and  must 

be  set  aside. 

The  certificate  under  which  the  sitting  member  holds  his  seat 
thus  being  void,  the  committee  deemed  it  their  duty,  it  appearing 
that  the  election  itself  was  regularly  conducted  in  all  respects,  to 
ascertain  who  was  elected,  so  that  the  district  might  neither  be 
deprived  of  its  representation,  nor  be  obliged  to  hold  another 
election,  in  consequence  of  a  mere  failure  of  duty  on  the  part  of 
the  town  clerks. .  To  avoid  the  certificate  is  not  necessarily  to 
avoid  the  election.  The  votes  are  properly  cast,  regularly  counted 
by  sworn  officers,  and  the  result  recorded  in  open  town  meeting  ; 
and  no  subsequent  omissions  could  affect  the  regularity  of  these 
proceedings.  In  this  view,  also,  they  were  sustained  by  the 
authority  of  Slimpson  v.  Breed,  sjipra. 

Havino;  decided  to  ascertain  the  result  of  the  election,  inde- 
pendently  of  the  certificate,  the  committee  discussed,  somewhat, 
the  way  in  which  this  should  properly  be  done. 

In  the  case  of  Stimpson  v.  Breed,  above  referred  to,  the  ballots 
were  sent  for,  and  counted  by  the  committee  having  the  case  in 
charge.  But  as  the  ballots  have  been  counted  once,  by  officers 
charged  with  that  duty,  and  the  result  made  matter  of  record,  in 
open  town  meeting,  your  committee  are  unable  to  see  why  they  are 
not  authorized  to  ascertain  —  presuming  that  the  town  officers  have 
done  their  duty,  in  respect  of  the  counting  and  recording,  there 
being  no  evidence  to  the  contrary, —  the  result  of  the  election  by 
examination  and  comparison  of  these  records.  The  clerks,  if  they 
had  met,  would  have  proceeded  in  that  manner,  and  your  commit- 
tee are  unable  to  see  why  they  may  not  use  the  records  as  evidence, 
to  the  same  effect  as  the  board  of  clerks  could  have  done.  When 
the  statute  makes  the  returns  sufficient  evidence  for  the  clerks,  from 
which  to  ascertain  the  result  of  the  election,  why  may  not  your 
committee,  supplying  the  omissions,  and  doing  the  duty  of  the 
clerks,  receive  and  act  upon  the  same  evidence? 

In  this  case,  however,  it  did  not  become  necessary  to  decide  this 
point ;  for,  in  respect  of  three  of  the  towns,  no  notice  was  served 
upon  the  clerks,  to  prevent  them  from  destroying  the  ballots,  as  by 
law  they  are  required  to  do,  at  the  end  of  sixty  days,  if  not  notified 
to  the  contrary,  and  it  was  not  disputed  that  the  record  of  the  votes 
in  these  towns  was  as  follows  :  — 


PRESCOTT   V.    GROSSMAN.       HOUSE,    1877. 


303 


Maynard, 

Sudbury,       

Weston, 

In  respect  to  the  remaining  town,  Way  land 
the  committee,  having  the  ballots  before  them 
decided,  upon  other  grounds,  to  recount  them 
which   the}'   did,   with   the   following   result:  — 

Wayland 

Total  vote  of  the  district,  .... 


Hlllis. 

Haynes. 

88 

202 

111 

117 

130 

79 

232 
561 


148 


546 


It  thus  appears  that  Mr.  Hillis,  the  sitting  member,  was  elected 
by  a  plurality  of  15. 

The  committee,  therefore,  recommend  that  the  petitioner  have 
leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.   H.  J.,  1877,  p.  177.] 


D.  M.  Prescott  et  al.  v.  E.  J.  Grossman. 


House  Document,  No.  84.     February  15,  1877. 

TON,  Chairman. 


Report  by  H.  M.  Knowl- 


Becovnt  of  Votes  refused.  The  fact  that  the  votes  for  representative  were  counted 
hy  a  number  of  ward  officers,  and  the  count  of  one  officer  was  not  alwa.vs  verified 
by  the  others,  and  that,  at  the  subsequent  city  election,  the  same  officers  made  a 
number  of  gross  errors  in  counting  vote*,  will  not,  if  proved,  be  sufficient  ground 
for  a  recount  of  votes  by  the  house  of  representatives. 

Briber]/.  The  distribution  among  voters  of  checks  redeemable  in  liquor,  cigars, 
etc.,  at  a  saloon  near  the  polls,  and  the  distribution  in  the  ward  room,  at  noon, 
during  the  election,  of  a  small  quantity  of  refreshments,  by  members  of  the 
political  party  of  which  the  sitting  member  was  the  candidate,  —  the  expenses  of  the 
campaign  being  paid  by  him  and  others, — if  such  acts  are  not  shown  actually  to 
have  influenced  voters,  or  to  have  been  authorized,  consented  to,  or  knowingly  rati- 
fied by  such  member,  will  not  invalidate  the  election. 

Eligibility.  Inhabitancy.  Where  the  member  returned  as  elected  in  1876,  had 
lived  so7ne  years  in  the  district,  and,  upon  the  burning  of  his  house  in  November, 
1875,  took  board  in  a  house  out  of  the  district,  but  soon  after  the  fire  made  prepara- 
tions to  rebuild,  the  work  continuing  to  the  time  of  the  election,  and  always  intended 
to  live  in  the  house  when  completed,  it  was  held,  that  he  continued  an  inhabitant  of 
the  district  and  was  eligible  to  election. 

The  Committee  on  Elections,  to  whom  were  referred  the  petition 
of  D.  M.  Prescott  and  others,  that  the  seat  as  representtitive  from 


304  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

the  twent3'-secoinl  Middlesex  district  ma^'  be  given  to  Tliomas  E. 
Garitv.  and  the  remonstrance  of  Geo.  A.  Clieney  and  others,  against 
the  admission  of  E  J.  Grossman  as  representative  from  said  district, 
submit  the  following  report :  The  district  in  question  is  the  twent}'- 
second  Middlesex,  comprising  ward  3,  in  Lowell,  electing  one 
representative.  The  petition  set  forth  three  several  allegations,  no 
one  of  which  was  proved  to  the  satisfaction  of  the  committee. 

1.  The  first  allegation  was,  that  the  sitting  member  had  not,  for 
one  3'ear  previous  to  his  election,  been  an  inhabitant  of  the  district. 
and  conseqnentl}'  was  ineligible.  The  evidence  submitted,  proved 
to  the  satisfaction  of  the  committee  the  following  facts  :  Mr.  Cross- 
man,  the  sitting  member,  came  to  Lowell  to  reside  some  years  ago, 
and  for  several  3-ears  occupied,  in  common  with  his  daughter  and 
her  husband,  a  house  on  Highland  Street,  in  the  district.  Mr. 
Grossman  has  had  no  family  (excepting  this  daughter)  for  some 
years.  This  house  on  Highland  Street  was  burned  Nov.  29,  1875  ; 
and,  thereupon,  Mr.  Grossman  and  his  daughter  separated.  He 
went  to  board  at  a  house  on  Alder  Street,  out  of  the  district,  where 
he  has  continued  to  board  up  to  the  present  time  ;  and  the  daughter 
went  in  another  direction,  also  out  of  the  district,  and  went  to 
keeping  house  again.  Soon  after  the  fire  Mr.  Grossman  caused  the 
foundations  and  cellar  of  the  burned  house  to  be  boarded  up,  for 
protection  from  the  elements  ;  and  in  the  spring  he  made  a  contract 
for  rebuilding.  The  work  of  rebuilding  began  in  July,  and  has 
been  going  on  without  interruption  since  that  time,  excepting  a  few 
weeks  in  the  fall,  when  the  carpenter  was  otherwise  engaged.  The 
house  is  now  nearl}'  read}'  for  occupanc}',  and  Mr.  Grossman  intends 
to  0CCUIV3'  it  as  soon  as  it  is  ready,  and  has  rebuilt  it  with  that  inten- 
tion. A  few  of  the  things  in  the  cellar  were  never  moved  at  all  ; 
such  as  the  furnace,  coal  and  wood,  garden  tools,  and  some  other 
articles  of  like  nature.  Without  Grossman's  knowledge,  the  assess- 
ors assessed  him,  the  last  year,  in  ward  6  ;  but  upon  the  tax-bill 
being  presented  to  him  in  September,  he  declared  it  was  incorrect ; 
and  he  wont  forthwith  to  the  assessors,  and  had  the  correction 
made,  and  his  name  restored  to  the  ward  3  list. 

The  above  was  all  the  evidence  material  to  the  issue,  and  upon 
it  the  committee  are  unanimous  that  the  sitting  member  has  clearly 
been,  within  the  meaning  of  the  Gonstitution,  an  inhabitant  of  the 
district  from  which  he  was  chosen,  during  the  whole  of  the  ^-ear 
preceding  his  election.  His  absence  from  the  district  was  tempo- 
rary, induced  by  necessity,  and  with  a  fixed,  definite  and  continuing 
intention  of  return.  All  the  elements  which  constitute  a  termina- 
tion of  residence  are  wanting,  excepting  the  single  one  of  bodily 
absence,  and  that  has  always  been  considered  to  be  of  at  least 


PRESCOTT   V.    GROSSMAN.      HOUSE,    1877.  305 

minor  importance  among  the  facts  necessary  to  establish  a  change 
of  inhabitancy. 

2.  It  was  alleged  that  the  votes  were  erroneously  counted,  and 
the  counsel  for  the  petitioners  proposed  to  show,  in  support  of 
this,  that  the  votes  were  counted  by  a  number  of  the  ward  officers, 
and  that  the  count  of  one  officer  was  not  in  all  instances  verified 
by  the  others.  He  also  proposed  to  show  that,  at  the  December 
election,  the  same  officers  made  a  number  of  gross  errors  in  count- 
ing votes.  The  committee  thought  that  these  facts,  if  proved, 
constituted  no  reason  for  a  recount,  and  declined  to  hear  the  evi- 
dence. 

3.  The  petition  alleged  that  various  irregularities  were  prac- 
tised, to  secure  the  election  of  the  sitting  member.  The  evidence 
on  this  point  was  generally  to  prove  the  hiring  of  a  large  number 
of  vote  distributors ;  the  distribution  of  a  number  of  checks 
among  the  voters,  redeemable  in  liquor,  cigars,  etc.,  at  a  saloon 
near  by,  and  the  distribution  of  a  small  quantity  of  refreshments, 
at  noon,  in  the  ward-room.  All  these  things  were  done,  at  the 
instance  and  under  the  direction  of  certain  members  of  the  politi- 
cal party  of  which  the  sitting  member  was  the  candidate,  and, 
subsequeutly,  he  and  other  candidates  of  the  party  contributed  to 
pay  the  bills  of  the  expenses  of  the  election  ;  but  it  did  not  appear 
that  he  knew,  or  had  any  reason  to  know,  the  specific  purpose  to 
which  the  money  was  applied. 

Your  committee,  while  unanimous  in  condemning  some  of  the 
acts  proven  to  have  been  done,  as  inconsistent  with  the  purity  of 
the  elective  franchise,  were  divided  upon  the  question,  whether 
an  election  of  representative  should  be  set  aside,  upon  proof  of 
general  irregularities,  like  those  above  referred  to,  or  whether 
there  should  not  be  specific  evidence  of  bribery  of  voters,  suffi- 
cient, if  the  corrupt  votes  were  excluded,  to  change  the  result. 
The  cases  cited  by  the  petitioners'  counsel,  —  Bradford^  1  O'Mal- 
ley  and  Hardcastle's  Election  Cases,  35  ;  Poole.  2  do.,  123  ;  and 
Kidderminster,  2  do.,  177, — point  very  strongly  to  the  former 
position  ;  but  they  are  all  English  cases,  decided  upon  statutes 
governing  elections  much  more  strict  than  anything  in  Massa- 
chusetts. The  committee,  however,  did  not  deem  it  necessar}'  to 
decide  the  question,  as  the  evidence  failed  to  satisfy  them  on  two 
material  points,  viz. :  — 

First.  That  any  of  the  acts  proven  actually  had  any  influence 
upon  the  minds  of  the  voters. 

Second.  That  (even  admitted  that  undue  influence  was  exer- 
cised) the  sitting  member  authorized,  consented  to,  or  knowingly 
ratified,   the   same.     The   proof   failing,  in   these   two  essential 


306  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

points,  the  committee  think  the  election  should  stand.      Williams' 
case,  Cashing  S.  &  J.  383.     Vide,  also,  Keeler's  case.  Gushing  S. 

&  J.  55. 

The   committee   therefore   unanimously   recommend    that   the 
petitioners  and  remonstrants  have  leaye  to  withdraw. 

[The  report  of  the  committee  was  accepted.      H.  J.,   1877, 
p.  197.] 


John  Osborne,  Jr.,  v.  Patrick  H.  Hallinan. 
Francis  Hayden  v.  Edward  J.  .Jenkins. 

House  Documents,  Nos.  181,  182.     March  15,  1877.     Eeports  by  H.  M. 

Knowlton,  Chairman. 

[In  these  two  cases,  the  petitioners  respectively  claimed  the 
seats  of  two  sitting  members,  on  the  ground  that  neither  of  the 
latter  had  been,  for  one  year  next  preceding  the  election,  an 
inhabitant  of  the  district  from  which  he  was  elected,  as  each, 
having  been  an  alien,  was  naturalized  during  that  year.  The 
opinion  of  the  justices  of  the  supreme  judicial  court  was  requested, 
upon  the  question  whether  persons,  otherwise  qualified,  who  had 
been  naturalized  within  the  year,  were  eligible  to  election  as 
representatives.  The  opinion,  that  such  persons  were  eligible,  is 
reported  in  Opinion  of  Justices,  122  Mass.  594,  and  in  the  supple- 
ment hereto.  Following  the  authority  of  that  opinion,  the  com- 
mittee reported,  in  each  case,  that  the  sitting  member  was  eligible, 
and  that  the  petitioners  have  leave  to  withdraw.  The  reports  of 
the  committee  were  accepted.  H.  J  ,  1877,  p.  314.  Patrick  A. 
CoLLixs  appeared  for  petitioners,  and  Charles  J.  Brooks  for  sit- 
ting members] 


CLAPP   V.    SHERMAN.       SENATE,    1878.  307 


SENATE  — 1878. 

Special  Committee  on  Beturns  of  Votes  for  Senators  — Hon.  Jonathan 
White,  Hon.  James  C.  Abbott,  Hon.  Hosea  M.  Knowlton,  Hon. 
Abraham  B.  Coffin  and  Hon.  Henry  C.  Ewing. 


Fred.  W.  Clapp  v.  Luther  H.  Sherman. 

Senate  Document,  No.  57.    February  14,  1878.     Report  by  Mr.  White, 
Chairman, — Messrs.  Abbott  and  Ewing,  dissenting. 

Recount  of  Votes  refused.  The  fact  that  the  aggregate  vote  returned  for  governor, 
in  a  senatorial  district,  exceeds,  by  263,  the  aggregate  vote  returned  for  senator,  will 
not  justify  a  recount  of  votes  for  senator. 

Recount  of  Votes  granted.  Where,  after  the  count  of  votes  for  representative  in  a 
town,  before  the  declaration  of  the  result,  a  recount  of  those  votes  only  was  made 
by  the  selectmen,  and  an  error  found  in  the  original  count,  amounting  to  a  greater 
number  of  votes  than  the  plurality  by  which  the  sitting  member  was  returned  as 
elected  senator  in  the  district,  the  votes  for  senator  in  that  town  will  be  recounted  by 
the  senate. 

Recount  of  Votes  in  whole  District  refused.  But  votes  for  senator,  in  the  other 
towns  in  the  district  will  not  be  recounted  in  the  absence  of  proof  tending  to  impeach 
the  records  and  returns  in  those  towns,  the  presumption  being  in  favor  of  their  ac- 
curacy. And  this  presumption  attaches  to  the  several  returns,  and  not  simply  to 
the  aggregate. 

The  Committee  on  the  Returns  of  Votes  for  Senators,  to  whom 
was  referred  the  petition  of  F.  W.  Clapp,  for  a  recount  of  votes 
in  the  fourth  Middlesex  senatorial  district,  having  met  the  peti- 
tioner, and  the  sitting  member,  Hon.  Luther  H.  Sherman,  —  both 
parties  appearing  by  counsel,  —  and  having  heard  their  statement, 
evidence,  and  arguments,  submit  the  following  report :  Tlie  peti- 
tioner, having  in  his  petition  set  forth  no  reasons  for  the  granting 
of  the  prayer  therein  contained,  furnished  to  the  committee,  upon 
their  request,  a  specification  of  the  grounds  of  his  claim  for  a 
recount,  which  was  as  follows  :  ^''  First,  That  there  is  a  difference 
between  the  number  of  votes  thrown  for  governor,  and  the  number 
of  votes  thrown  for  senator,  of  263  in  favor  of  the  governor's 
vote;  while  the  interest  and  attention,  throughout  the  district, 
was  in  the  senatorial  contest  more  than  in  the  gubernatorial. 


308  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

Second,  That  great  carelessness  was  manifest  in  the  counting 
of  the  votes  ;  one  instance,  especially,  being  in  the  town  of  Natick, 
where  a  package  of  about  60  ballots  was  not  counted  at  all ;  and 
these  ballots  were  of  that  party,  a  very  large  majority  of  whom 
were  in  favor  of  your  petitioner  for  senator.  All  of  which 
specification  your  "petitioner  is  fully  prepared  to  prove."  In 
relation  to  the  second  allegation,  it  appeared  in  evidence,  that  the 
sorting  and  counting  of  the  ballots,  in  the  first  instance,  in  the 
town  of  Natick,  was  delegated  by  the  selectmen  to  two  citizens 
of  the  town  designated  by  them  ;  the  selectmen  acting  therein, 
apparently,  upon  the  supposition  that  the  selection  of  persons 
from  opposing  political  parties  would  afford  all  the  protection 
against  fraud  and  mistake  in  the  count  which  was  intended  to  be 
secured  by  the  provisions  of  law  in  that  regard,  — a  supposition, 
the  committee  may  remark,  in  passing,  which  they  believe  to  be 
not  unfrequently  entertained  and  acted  upon. 

These  two  counters  were  called  as  witnesses,  one  on  behalf  of 
the  petitioner,  the  other  on  behalf  of  the  sitting  member.  Their 
testimony  concerning  any  certain  distinct  package  of  uncounted 
ballots  was  vague  and  conflicting,  and,  taken  together  with  all 
other  testimony  bearing  upon  that  point,  would  not,  in  the  opinion 
of  the  committee,  have  justified  the  finding,  nor  even  afforded 
reasonable  ground  for  supposing  that  there  was  any  such  package. 
It  was,  however,  in  evidence,  and  undisputed,  that  after  the  first 
count  was  completed,  and  just  before  the  final  public  declaration 
of  the  vote,  upon  the  suggestion  of  some  one,  a  recount  was  had, 
by  the  selectmen,  of  the  votes  for  representative  for  the  Natick 
district,  by  which  it  appeared,  that  the  several  candidates  for  that 
oflUce  had  together  gained  57  votes  over  the  first  count  Some  of 
the  witnesses  testified,  in  explanation  of  the  error,  that  it  arose, 
and  was  at  the  time  supposed  by  all  parties  to  have  arisen, 
from  a  mistake  on  the  part  of  the  clerk  in  recording  the  count  of 
ballots  for  that  single  office  ;  that,  in  fact,  the  suggestion  of  a 
recount  originated  in  the  unexpected  result  of  the  balloting  for 
representative  alone.  The  evidence,  wholly  uncontroverted,  that 
all  parties  acquiesced  in  the  action  of  the  selectmen,  in  confining 
their  recount  to  votes  for  that  office,  and  that  no  one  claimed  or 
requested  a  recount  in  the  case  of  any  other  officer,  made  the  ex- 
planation a  plausible  one. 

Nevertheless,  the  committee  were  of  the  opinion,  that  the 
acknowledged  error  in  the  case  of  the  representative  —  an  error 
to  an  amount  exceeding  the  plurality  of  votes  for  the  candidate 
declared  by  the  official  returns  to  be  elected  senator  —  rendered  it 
proper  that  there  should  be  a  recount,  by  the  committee,  of  ballots 


CLAPP   V.    SHERIVIAN.       SENATE,    1878.  309 

cast  for  the  latter  officer  in  the  town  of  Natick.     Such  a  recount 
was  accordingly  had,  with  the  following  results  :  — 

Whole  number  of  votes  cast, 1,063 

For  senator  of  fourth  Middlesex  district,  — 

Fred.  W.  Clapp, 526 

Luther  H.  Sherman, 453 

Gill, 84 

There  were  also  81  ballots,  on  which  no  vote  appeared  for  any 
candidate  for  senator.  No  evidence  whatever  was  produced  or 
offered,  on  behalf  of  the  petitioner,  of  any  irregularity  in  the 
doings  of  the  towns  in  the  district,  other  than  the  town  of  Natick. 
There  was  no  evidence  before  the  committee,  to  impeach  in  any 
way  the  records  and  returns  of  those  towns,  in  the  matter  of 
the  election,  whether  of  senator  or  any  other  officer.  The  natural 
and  legal  presumption,  therefore,  in  favor  of  the  correctness  of 
the  official  returns,  remained  in  full  force  and  unimpaired,  so  far 
as  those  towns  were  concerned  ;  a  presumption  which  must,  in 
the  nature  of  things,  attach  to  the  several  returns,  and  not  simply 
to  the  aggregate.  The  committee  were  of  the  opinion,  that, 
under  such  circumstances,  neither  precedent,  nor  the  reason  of 
the  thing,  required  them  to  recount  the  votes  of  those  towns. 

Inasmuch,  therefore,  as,  by  the  recount  of  ballots  cast  in  the 
town  of  Natick,  it  appears  that  the  plurality  in  the  aggregate 
vote  of  the  senatorial  district,  in  favor  of  the  sitting  member  over 
that  in  favor  of  the  petitioner,  as  given  by  the  official  returns,  — 
namely,  37,  —  is  reduced  by  one  vote  only,  the  committee  find, 
and  report,  that  the  sitting  member,  Hon.  Luther  H.  Sherman,  is 
entitled  to  the  seat  now  occupied  by  him,  and  recommend  that 
the  petitioner  have  leave  to  withdraw. 

[Messrs.  Abbott  and  Ewing  submitted  their  views,  as  a  minor- 
ity. The  report  of  the  committee  was  accepted.  S.  J.,  1878, 
p.  117.] 


310  MASSACHUSETTS   ELECTION   CASES 1853-1885. 


HOUSE  — COMMITTEE   ON  ELECTIONS,    1878. 

Messrs.  Nathan  M.  Hawkes  of  Lynn,  Chairman;  Thkodore  D.  Beach 
of  Springfield,  Abiathar  Doane  of  Harwich,  Francis  Gargan  of 
Boston,  William  Manning  of  Chelmsford,  John  W.  Curtice  of  Hins- 
dale and  Henry  Paddock  of  Nautuclset. 


Dennis  O'Connor  v.  James  L.  Locke. 

House  Document,  No.   14.     January  24,   1878,    Keport  by  Nathan  M. 

Hawkes,  Chairman. 

Recount  of  Votes  refused.  Where  votes  have,  upon  petition,  been  recounted,  by 
the  board  of  aldermen,  such  recount  must  stand,  unless  it  is  shown  that,  in  such 
recount,  clerical  or  other  errors  were  made;  that  there  was  carelessness  or  fraud; 
or  that  some  other  cause  existed,  which  in  the  case  of  ward  or  town  officers,  in  the 
primary  count,  would  have  been  good  ground  for  a  recount ;  and  the  votes  will  not  be 
recounted  by  the  house  of  representatives,  merely  because  the  recount  by  the  board 
of  aldermen  differed  from  the  original  count,  and  changed  the  originally  declared 
result. 

Thomas  J.  Gtxrga.^  for  petitioner. 

John  H.  George  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Dennis  O'Connor,  for  a  recount  of  votes  for  representatives  in 
the  eighth  Suffolk  district,  have  duly  considered  the  same,  and 
report  as  follows  : 

The  eighth  Suffolk  district  comprises  the  eighth  ward  of  the 
city  of  Boston,  and  elects  two  representatives. 

By  the  return  of  the  ward  officers  the  votes  (excepting  the 
scattering)  were  as  follows  :  — 

Francis  Gargan, .  788 

James  L.  Locke, 605 

Dennis  O'Connor, 681 

Charles  Jarvis, 519 

Upon  petition,  the  votes  for  representatives  in  the  district  were 
recounted,  agreeably  to  law,  by  the  board  of  aldermen  of  the  city  of 
Boston.     The  result  of  the  count  by  the  aldermen  was  as  follows  : 

Francis  Gargan, 667 

Jaoies  L.  Locke, 625 

Dennis  O'Connor, 562 

Charles  Jarvis, 542 


MACOitfBER   V.    FISHER.      HOUSE,    1878.  311 

The  scattering  votes  are  also  omitted  in  the  recount. 

The  ward  officers'  returns  would  have  elected  Messrs.  Gargan 
and  O'Connor.  The  recount  elected  Messrs.  Gargan  and  Locke, 
to  whom  certificates  of  election  were  siven. 

Mr.  O'Connor  asked  for  a  recount ;  but  he  alleged  no  fraud, 
nor  pointed  out  any  errors  in  the  recount. 

His  ground  for  asking  a  recount  by  the  house  was  that  there 
had  been  counts  by  two  boards  of  officers ;  that  these  counts  had 
been  different,  had  led  to  different  results,  and  consequently  he 
appealed  to  the  final  tribunal  to  decide  between  the  two. 

The  sitting  member,  holding  a  certificate  of  election,  has  a 
2mma  facie  case,  and  his  title  is  not  to  be  put  in  peril,  unless 
some  good  reason  is  given. 

The  committee  consider  that  a  recount  by  the  board  of  alder- 
men must  stand,  unless  it  is  shown  that  clerical  or  other  errors 
were  made  ;  carelessness  or  fraud  or  any  other  cause  existed, 
which,  in  the  case  of  ward  or  town  officers,  in  the  primary  count, 
would  have  been  good  ground  for  asking  a  recount. 

The  committee  deem  it  their  duty  to  establish  no  precedent, 
tending  to  make  common  the  habit  of  appealing  to  the  house  to 
recount  votes,  when  no  valid  reason  exists  for  such  course. 

The  committee,  therefore,  report  that  the  petitioner  have  leave 
to  withdraw. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1878,  p. 
77.] 


William  P.  Macomber  v.  Charles  Fisher. 

House  Documeut,  No.  37.     January  31,  1878,     Report  by  Nathan  M. 

Hawkes,  Chairman. 

Name  of  Candidate  on  Ballot.  Presumption.  Where  there  are  several  persons  of 
the  same  name,  in  the  district,  each  of  whom  is  eligible  to  election  as  representative, 
and  one  only  of  whom  has  been  designated  as  a  candidate,  ballots  bearing  that 
name  are,  in  an  election  controversy,  by  a  reasonable  intendment,  without  further 
designation,  presumed  to  have  been  cast  for  that  candidate. 

Same.  In  a  district  composed  of  the  towns  of  Westport  and  Dartmouth,  votes  for 
"William  P.  Macomber"  will  be  counted  for  William  P.  Macomber  of  Westport, 
although  there  is  another  person  of  that  name  in  Dartmouth,  eligible  to  election, 


312  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

upon  proof  that  William  P.  Macomber  of  Westport  was  a  regularly  nominated  can- 
didate that  it  was  understood  by  both  parties  that  the  candidate  that  year  should 
be  from  Westport;  and  that  it  was  the  intention  of  the  voters  to  vote  for  him. 

Al ANSON  Borden  for  petitioner. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  William  P.  Macomber,  for  the  seat  as  representative  from  the 
seventh  Bristol  district,  now  occupied  by  Charles  Fisher,  having 
considered  the  same,  submit  the  following  report :  The  seventh 
Bristol  district  embraces  the  towns  of  Westport  and  Dartmouth, 
and  elects  one  representative. 

There  was  substantially  no  dispute  concerning  the  facts  in  this 
case.  The  candidates  nominated  for  representatives  to  the  pres- 
ent general  court,  in  the  district,  were  Charles  Fisher  and  Wil- 
liam P.  Macomber,  both  of  Westport.  When  the  clerks  of  the 
towns  met,  agreeably  to  law,  after  the  election,  to  compare 
returns,  and  issue  the  certificate  of  election,  the  vote  for  repre- 
sentatives was  found  to  stand  as  follows  :  — 

Whole  number  of  votes, 560 

William  P.  Macomber  of  Westport,  had         .        .  163 

William  P.  Macomber  had 145 

Charles  Fisher  of  Westport,  had    .        .        .        .  252 

The  clerks  declined  to  count  the  votes  which  were  cast  for  William 
P.  Macomber  (without  the  name  of  the  town  annexed)  for  William 
P.  Macomber  of  Westport,  and  consequently  Charles  Fisher  was 
given  the  certificate,  as  having  received  a  plurality  of  votes  cast. 

The  petitioner  claimed  that  the  votes  for  William  P.  Macomber, 
where  the  name  of  the  town  was  omitted,  were  intended  for  him, 
and  should  have  been  so  counted.  If  the  votes  so  thrown  had 
been  counted  for  him,  he  wouW  have  received  308  votes,  or  56 
votes  more  than  the  sitting  member.  This,  then,  was  the  ques- 
tion which  the  committee  were  called  upon  to  determine.  The 
contestant  was  represented  by  counsel,  and  produced  a  cloud  of 
witnesses  to  substantiate  his  claim. 

The  contestant  testified  that  he  was,  and  for  his  whole  life  had 
been,  a  resident  of  Westport ;  that  he  was  asked,  prior  to  the  con- 
vention, if  he  would  accept  the  nomination  of  the  prohibitory 
convention;  that  subsequent  to  the  meeting  of  the  convention, 
he  had  bec^n  Avaited  on  by  a  committee,  who  informed  him  of  his 
nomination,  and  asked  his  acceptance,  which  was  given.  He 
knew  that  both  parties  acted  upon  an  agreement  or  understand- 
ing that  the  candidate  for  this  year  was  to  be  a  Westport  man. 
He  did  not  learn  that  there  was  any  question  about  his  being 
the   candidate   till  after  election,  when   it  was   discovered   that 


MACOMBER   V.    FISHER.      HOUSE,    1878.  313 

there  were  ballots  without  the  name  of  the  town  attached,  and 
that  there  was  a  man  in  Dartmouth  of  the  same  name.  He  also  said 
that  Charles  Fisher,  the  sitting  member,  called  upon  him,  after 
the  convention,  and  had  some  conversation  with  him,  in  regard 
to  one  or  the  other  withdrawing  from  the  contest. 

Albert  F.  King  of  Westport  testified  that  he  was  a  member  of 
the  convention  of  the  prohibitory  party  for  the  district,  and  was 
one  of  a  committee  to  notify  William  P.  Macomber  of  his  nomina- 
tion. He  saw  Macomber  before  the  convention,  and  he  agreed  to 
be  a  candidate.  He  did  not  then  know  that  there  was  another 
William  P.  Macomber  in  the  district.  He  was  one  of  the  ballot 
committee,  and  ordered  the  name  of  William  P.  Macomber  of 
Westport  to  be  printed. 

William  P.  Macomber  of  Dartmouth  testified  that  "  he  vras  not 
consulted  by  anybody  about  being  a  candidate ;  was  not  a  candi- 
date ;  had  lived  in  Dartmouth  nine  j-ears  ;  voted  at  the  last  election 
for  William  P.  Macomber  of  Westport ;  did  not  know  whether  the 
name  of  the  town  was  printed  after  the  name  of  the  candidate  or 
not." 

William  Barker,  Jr.,  of  Dartmouth,  was  called  by  the  contestant. 
Mr.  Barker  had  resided  in  Dartmouth  fifty-seven  years.  He  ap- 
pears not  only  to  have  been  the  leading  manager  of  his  part}',  in 
the  last  election,  but  has  also  been  appreciated  as  a  public  officer, 
as  he  seems  to  have  held  all  the  important  town  and  State  offices 
in  the  gift  of  Dartmouth  for  a  long  number  of  years.  He  was,  as  a 
spectator,  in  the  convention  that  nominated  the  petitioner.  He 
testified  that  the  general  understanding  was,  that  the  representa- 
tive for  the  present  year  was  to  be  a  resident  of  Westport ;  and 
that  an  arrangement  to  that  eflfect  was  made  last  year.  He  voted 
for  William  P.  Macomber  of  Westport.  In  response  to  inquiries 
by  the  sitting  member,  Mr.  Barker  said,  that  the  polls  were  closed, 
or  "the  boxes  were  turned,"  in  Dartmouth,  at  twelve,  m.,  upon 
his  motion.  He  further  stated,  that  there  was  a  factory  in  that 
town,  but  he  did  not  know  how  many  of  the  emploj-ees  were  voters 
in  that  town.  This  fact  is  not  significant  in  itself,  but  is,  when  it 
appeared,  from  the  statement  of  the  sitting  member,  that  the  em- 
ployees of  the  large  factory  were  in  the  habit  of  exercising  the 
freeman's  right  of  ballot  during  the  noon  hour.  Mr.  Barker,  nor 
any  one  else,  appeared  to  remember  when  a  like  early  closing  of 
the  polls  took  place  in  that  town.  The  sitting  member  did  not 
question  the  legality  of  the  early  closing,  but  simply  called  the 
attention  of  the  committee  to  what  he  considered  a  sharp  trick  by 
his  opponents.     At  this  point  the  committee  were  impressed  with  a 


314  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

slight  suspicion  that  the  arts  of  the  local  politician  were  not  wholly 
to  be  found  in  the  ciiies,  nor  in  any  one  political  party.  Perhaps 
the  committee  may  be  allowed  to  express  the  opinion,  that  noon 
is  an  early  hour  for  closing  the  polls,  in  a  town  where  there  are 
many  laboring  men ;  that  is  to  say,  mechanics  or  employees  in 
factories.  It  is,  however,  only  just  to  say,  in  behalf  of  the  con- 
testant, that  if  his  party  friends  in  Dartmouth  had  an  idea  that 
the  factory  operatives  would  not  vote  their  ticket,  and  so  pre- 
vented them  from  voting  at  all,  he  knew  nothing  of  the  matter. 

There  was  a  mass  of  uncontradicted  testimony  offered,  to  show 
that  William  P.  Macomber  of  Westport  was  the  man  for  whom  the 
voters  of  the  district  intended  to  vote.  As  the  sitting  member 
raised  no  question  as  to  the  intention  of  the  voters  to  cast  their 
ballots  for  William  P.  Macomber  of  Westport,  and  as  the  testimony 
was  cumulative,  the  committee  did  not  hear  all  the  gentlemen  who 
were  present,  and  forbear  to  quote  further  from  the  statements  of 
those  who  were  heard. 

After  the  hearing,  there  existed  in  the  minds  of  the  committee 
no  reasonable  doubt,  that  the  votes  cast  for  William  P.  Macomber 
were  intended  for  William  P.  Macomber  of  Westport. 

Gushing,  in  his  "  Law  and  Practice  of  Legislative  Assemblies" 
(Part  I,  chap,  iv,  p.  42),  states  the  rule  to  be  followed  in  such 
cases,  as  follows  :  "  Where  there  are  several  persons  of  the  same 
name  in  a  constituenc}-,  all  of  whom  are  in  fact  equally  eligible, 
and  one  of  whom  has  been  designated  as  a  candidate,  ballots  bear- 
ing that  name  are,  by  a  reasonable  intendment,  and  without  any 
further  designation,  supposed  to  be  given  for  that  candidate." 

Equity  requires  that  the  will  of  the  voters  should  be  respected, 
where  it  can  be  ascertained  without  violation  of  the  forms  of  law. 

The  committee  are,  therefore,  unanimous  in  the  opinion  that  the 
petitioner  is  entitled  to  the  seat,  and  they  recommend  the  adoption 
of  the  accompanying  resolution. 

[The  resolution  declared  the  petitioner  entitled  to  the  seat  and 
was  adopted.  H.  J.,  1878,  p.ll7.  Mr.  Macomber  qualified,  and 
took  the  seat.     76.,  p.  134.] 


KIMBALL   V.    TILTON.      HOUSE,    1878.  315 


D.  Smith  Kimball  v.  John  W.  Tilton. 

House  Document,  No.  92.     February  25,  1878.     Report  by  Nathan  M. 

Hawkes,  Chairman. 

Recount  of  Votes  granted.  Where,  at  the  election  of  representative,  in  a  district 
composed  of  the  city  of  Haverhill  and  town  of  Methuen,  the  petitioner  was  elected, 
according  to  the  original  count,  but  the  votes  of  Haverhill  were  afterwards,  upon 
petition,  recounted  by  the  aldermen,  and  by  the  recount  the  sitting  member  was 
returned  as  elected,  by  a  plurality  of  three  votes,  in  the  district,  the  votes  of  the  dis- 
trict were  recounted  by  vote  of  a  majority  of  the  committee. 

Dissenting  Views  of  the  Chairman  on  Question  of  Recount.  The  chairman  of  the 
committee  submitted  his  views,  as  a  minority,  that  a  recount  of  the  votes  in  part  of 
a  district,  by  the  proper  authority,  in  the  absence  of  evidence  tending  to  throw  sus- 
picion upon  the  returns  of  the  other  portion  of  the  district,  affords  no  reasonable 
ground  for  the  house  of  representatives  to  recount  the  votes  of  the  balance  of  the 
district. 

The  Committee  on  Elections,  to  wliom  was  referred  the  petition 
of  D.  Smith  Kimball,  askiijg  for  a  recount  of  the  votes  for  repre- 
sentative in  the  nineteenth  Essex  district,  being  the  district  now 
represented  by  John  W.  Tilton  of  Haverhill,  having  considered  the 
same,  submit  the  following  report :  The  nineteenth  Essex  district 
comprises  the  city  of  Haverhill  and  the  town  of  Methuen,  and 
sends  three  representatives  to  the  house. 

The  petitioner  represented  that  he  was  a  candidate  for  a  seat  in 
this  house  at  the  November  election  in  1877. 

He  asked  for  a  recount  of  votes,  in  said  district,  upon  the  ground 
that,  "  upon  the  first  canvass  of  votes,  cast  at  said  election,  it  ap- 
peared that  he  was  elected  by  a  plurality-  of  43  votes  over  John  W. 
Tilton,  the  opposing  candidate,  but  upon  a  recount  of  the  vote  of 
the  city  of  Haverhill,  upon  the  petition  of  said  Tilton,  the  result  of 
the  first  count  appeared  to  be  so  far  changed,  as  that,  taking  the 
vote  of  Methuen  as  declared,  with  that  of  Haverhill  as  recouuted, 
said  Tilton  was  elected  by  a  plurality  of  three  votes."  And  "  be- 
lieving that  he  was  rightfully  elected,  and  that  he  was  wronged  by 
the  partial  recount  in  said  district,  and  that  a  full  recount  of  all 
the  votes  cast  at  said  election  of  representatives  throughout  said 
district,  would  show  that  he,  and  not  said  Tilton,  received  the 
larger  number  of  votes  for  said  office,  he  prays  that,  under  the  au- 
thority of  your  body,  a  recount  of  the  vote  of  said  town  of  Methuen, 
or  of  the  whole  district,  be  had  by  your  committee  on  elections." 

A  hearing  was  granted  upon  the  petition,  wherein  the  facts  re- 
lating to  the  election,  as  above  set  forth,  were  stated  by  the  peti- 
tioner, and  admitted  by  the  sitting  member. 


316  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

The  committee  asked  leave  of  the  house  to  send  for  persons  and 

papers. 

The  order  allownig  the  same  was  adopted. 

The  ballots  of  the  whole  district  were  produced  by  the  officers 

having  charge. 

The  votes  were  counted  by  the  committee,  who  are  unanimous 
in  the  result  of  the  count,  which  is,  that  there  is  no  error  in  the 
original  count  of  the  votes  cast  in  the  town  of  Methuen  ;  and  in 
the  city  of  Haverhill  the  sitting  member  and  the  contestant  each 
has  one  more  vote  than  was  counted  for  him  by  the  board  of 
aldermen. 

It  thus  appears  that  Mr.  Tilton,  the  sitting  member,  was  elected 
by  a  plurality  of  four  votes. 

The  committee,  therefore,  recommend  that  the  petitioner  have 
leave  to  withdraw. 

Mr.  Hawkes,  the  chairman,  submitted  the  following  views, 
regarding  the  recount  of  votes  by  the  majority  of  the  committee  :  — 
The  undersigned,  a  member  of  the  Committee  on  Elections,  be- 
lieves that  the  recounting  of  ballots,  in  the  above  case,  was  un- 
called for  by  the  usages  and  precedents  of  this  and  similar  legisla- 
tive bodies. 

This  house  itself  has  decided,  in  the  case  of  O'Connor  v.  Locke^ . 
ante,  p.  310,  that  a  recount  should  not  be  ordered,  without  some 
fraud  or  error,  or  other  good  cause,  was  alleged,  which  would  tend 
to  throw  suspicion  upon  the  returns  of  the  city  or  town  officers 
charged  with  the  duty  of  ascertaining  the  result  of  elections. 

That  case  differs  from  the  present,  only  in  the  formation  of  the 
district.  In  the  matter  of  O'Connor  v.  Locke,  the  district  was  a 
single  ward  of  a  city,  where  a  recount  had  been  made  by  the  board 
of  aldermen.     In  this  case  the  district  comprised  a  city  and  a  town. 

A  recount  had  been  made  in  the  city  ;  but  no  recount  had  taken 
place  in  the  town,  by  reason  of  the  provisions  of  law,  applicable  to 
towns,  differing  from  those  of  cities  :  that  is  to  say,  the  returns  of 
town  officers  once  made,  there  is  no  authority  to  recount,  except 
as  in  the  case  of  representatives,  by  an  order  of  the  house. 

In  cities,  it  is  the  duty  of  the  maj^or  and  aldermen  to  recount, 
upon  petition,  in  compliance  with  the  statutes. 

The  reason  for  the  distinction  is  patent ;  for  in  cities  the  counters 
are  ward  officers,  and  the  mayor  and  aldermen  are  an  independent 
and  superior  power  ;  while  in  towns,  the  whole  machinery  of  election 
is  in  the  hands  of  one  body,  —  the  selectmen. 

In  towns  the  vote  is,  as  a  rule,  much  less  than  in  cities.  It  is 
the  custom  of  man}',  if  not  most  towns,  like  Methuen  in  the  present 


KIMB.VI.L   V.    TILTON.       HOUSE,    1878.  317 

case,  to  vote  for  representatives  upon  separate  ballots,  deposited 
in  separate  ballot-boxes.  This  lessens  the  liabilit}-  for  a  miscount. 
It  is  somewhat  of  a  difficult  problem  to  solve,  to  create  a  revisino- 
board,  without  rendering  our  election  system  unreasonablj'  cum- 
brous. 

The  present  case  demonstrates  the  accuracy  of  town  officers,  and 
presents  a  very  agreeable  contrast  to  the  experience  of  those  who 
have  been  called  upon  to  compare  the  returns  of  cities.  The  re- 
turns of  the  selectmen  of  Methuen  agreed  exactly  with  the  official 
recount  by  your  committee. 

The  returns  of  the  ward  officers  of  the  city  of  Haverhill,  with  the 
vote  of  Methuen,  would  have  elected  Mr.  Kimball. 

Upon  a  recount  of  the  votes  of  Haverhill  by  the  board  of 
mayor  and  aldermen,  had  upon  petition  of  Mr.  Tilton's  friends,  the 
result  was  reversed,  and  Mr.  Tilton  was  given  the  certificate  of 
election. 

Mr.  Kimball  claimed,  that,  as  he  lost  the  seat  bj'  a  partial  re- 
count of  the  district,  it  was  only  fair  to  allow  him  a  recount  of  the 
vote  of  Methuen,  as  of  the  whole  district. 

At  the  hearing  before  the  committee,  he  neither  proved,  ncr 
offered  to  prove,  any  illegality,  informality,  fraud,  error,  or  mistake 
in  the  election  proceedings,  in  the  count  or  return  of  the  vote  of  the 
town  of  Methuen. 

Both  parties  expressed  themselves  content  with  the  fairness  and 
correctness  of  the  figures  of  the  mayor  and  aldermen  of  Haverhill. 

Granting  a  recount,  under  the  above  circumstances,  seems  to  the 
undersigned  a  good-natured  yielding  to  the  natui'al  desire  for  one 
more  chance  at  fortune's  wheel. 

Armed  with  the  power  of  sending  for  persons  and  papers,  b}'  an 
order  of  the  house,  the  committee  sent  for  and  counted  the  ballots 
of  not  only  Methuen,  but  also  Haverhill. 

It  is  true,  the  contest  between  these  two  gentlemen  was  very 
close ;  but  the  house  of  representatives  of  Massachusetts  has,  on 
various  occasions,  and  notabl}'  in  the  able  and  logical  report  of  last 
year's  committee,  in  the  case  of  McGibhons  v.  Walden,  ante,  p.  289, 
for  a  recount  of  the  votes  for  representative  in  the  eleventh  Essex 
district,  decided  that  closeness  of  the  vote  constituted  no  ground 
for  a  recount  by  the  house.  Errors  may  exist  in  every  representa- 
tive district  in  the  Commonwealth. 

Will  the  house  of  representatives,  upon  the  petitions  of  two 
hundi'ed  and  fort}^  good  citizens,  who  may  have  been  voted  for, 
order  or  permit  its  committee  on  elections  to  count  all  the  ballots 
cast  at  the  annual  election,  without  the  shadjw  of  a  reason  being 
given?     If  so,  something  of  a  harden  is  put  upon  the  committee, 


318  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

and  the  whole  time  of  an  average  session  of  the  general  court 
might  be  wasted,  in  settling  claims  for  the  seats  of  members. 

Had  the  result  of  the  recount  been  different  in  this  case,  had  it 
illustrated  the  fact  that  the  contestant  had  been  kept  from  his  seat 
by  the  partial  recount,  the  undersigned  might  not  have  felt  called 
upon  to  make  this  protest  against  what  he  considered  a  dangerous, 
loose,  and  vexatious  meddling  with  the  certificates  and  seats  of 
members  of  this  house. 

Reluctant  to  differ  with  his  committee,  the  undersigned  is  yet 
strongl}^  of  the  opinion,  that  a  partial  recount,  —  that  is,  a  recount 
of  a  portion  of  a  district,  by  the  properly  constituted  tribunal,  in 
the  absence  of  any  allegation  tending,  in  the  slightest,  to  throw 
suspicion  upon  the  returns  of  the  other  portion  of  the  district,  — 
affords  no  reasonable  ground  for  this  house  to  permit  the  rejount- 
insc  of  the  balance  of  the  district. 


'» 


[The  report  of  the  committee  was  accepted.  H.  J.,  1878,  p.  215. 
The  action  of  the  majority  of  the  committee,  in  recounting  the  vote, 
is  regarded  by  the  editors  as  a  bad  precedent,  and,  under  the  pro- 
visions of  the  resolve  giving  to  the  editors  a  discretion  in  such 
cases,  would  not  have  been  reported,  except  for  the  able  and 
vigorous  statement  of  dissenting  views  by  the  chairman  of  the 
committee.  These  views  are  referred  to  in  subsequent  cases,  as 
the  true  exposition  of  the  law,  and  for  that  reason  are  reported.] 


MULCHINOCE:  v.   JENKINS.      house,    1879.  319 


HOUSE  — COMMITTEE    ON    ELECTIONS,    1879. 

Messrs.  John  H.  Sherburne  of  Boston,  Chairman;  Edward  J.  JEXiaNS 
of  Boston,  Sa-MUEL  R.  Daision  of  Lancaster,  Rurus  Smith  of  Chatham, 
Elijah  B.  D.vniels  of  East  Medway,  Willia-M  Lyon  of  Lynn  and 
Daniel  S.  Mo  one  y  of  Maxlbxirough. 


John  D.  Mulchinock  v.  Edward  J.  Jenkins. 

House  Document,  Nc20.    January  16,  1879.     Report  by  John  H.  Sher- 
burne, Chairman. 

Recount  of  Votes  refused.  Votes  for  representative  will  not  be  recounted  by  the 
house  of  representatives  merely  because  the  petitioner  believes  there  may  have  been 
error  in  the  original  count. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  John  D.  Mulchinock,  contestant  for  the  seat  now  occupied  by 
Edward  J,  Jenkins  from  the  twelfth  Suffolk  district,  askino-  that 
the  votes  of  said  district  be  recounted,  have  duly  considered  the 
same,  and  report  as  follows  : 

The  petitioner  requests  a  recount  on  the  following  grounds  :  — 
"  That  he  has  reason  to  believe  that  more  votes  were  cast  for 
himself  than  for  Edward  J.  Jenkins;"  "that  the  counting  upon 
which  said  Jenkins  was  declared  to  be  elected  was  erroneous ;" 
"  that  errors  of  count  exist  in  each  precinct ;"  "  that  he  believes 
more  votes  were  cast  for  himself  than  were  counted  or  declared." 

In  answer  to  a  question  by  the  committee,  the  petitioner  stated 
that  he  had  applied  properly  to  the  board  of  aldermen  for  a  re- 
count of  the  votes  within  the  time  specified  by  law  ;  but  that,  for 
some  technical  reason,  the  aldermen  had  refused  to  grant  his 
request. 

The  petitioner  offered  evidence  tending  to  show,  that  at  the 
election  for  representatives  in  said  district,  held  on  the  oth  day 
of  November  last,  the  vote  was  declared  to  be  as  follows : 


Patrick  F.  Mui-phy, 

1,102  votes 

Edward  J.  Jenkins, 

946     " 

John  D.  Mulchinock,    .        .        .        , 

854     " 

Francis  Hayden,   .... 

.        .           308     " 

Scattering, 

A  few    " 

The  petitioner  offered  no  evidence  to  sustain  any  of  the  allega- 
tions contained  in  his  petition  ;  disclaims  fraud  of  any  kind  ;  and 


320  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

seeks  to  control  the  plurality  of  ninety-two  votes,  which  the 
seated  member,  Jenkins,  has  over  himself,  by  simply  saying  that 
"he  thinks  there  may  have  been  some  error  in  counting  the 
votes." 

The  committee  therefore  recommend  that  the  petitioner  have 
leave  to  withdi-aw. 

[The  report  of  the  committee  was  accepted.    H.  J.,  1879,  p.  66.] 


Ira  p.  Pope  et  al.  v.  J.  Albert  Blake. 

House  Document,  No.  21.    January  17,  1879.     Report  by  John  H.  Sher- 
burne, Chairman. 

[In  this  case  the  votes  for  representatives  were  recounted, 
without  a  statement  of  the  grounds  for  the  recount.  Upon  the 
recount  the  sitting  member  was  found  to  have  been  elected  by 
such  a  plurality  as  to  render  immaterial  the  question  whether 
certain  disputed  votes  should  be  counted,  and  the  committee 
thereupon  reported  that  the  petitioners  have  leave  to  withdraw, 
and  the  report  of  the  committee  was  accepted  by  the  house. 
H.  J.,  1879,  p.  73.  Th'e  case,  in  the  opinion  of  the  editors,  is 
not  of  value  as  a  precedent.] 


Horace  L.  BoAVTi;ER  v.  George  H.  Boxd. 

House  Document,  No.  29.  January  21,  1879.  Report  by  Messrs.  Sher- 
burne, Damon,  S.mith  and  Daniels,  —  Messrs.  Jenkins,  Mooney  and 
Lyon  dissenting. 

Recount  of  Votes  granted..  Where  the  petitioner  was  declared  elected  l}y  tlie  ward 
returns  of  a  city,  and  the  votes  were  afterwards,  upon  petition,  recounted  by  the 
aldermen  of  the  city,  and  the  sitting  member  found  by  the  recount  to  have  a  plurality 
of  three  votes,  the  house,  against  the  report  of  a  majority  of  the  committee,  ordered 
tlie  votes  recounted ;  the  minority  of  the  committee  reporting  in  favor  of  a  recount, 
on  the  ground  that  the  original  count  )jy  the  ward  officers  was  carefully  made ;  that 


BOWKER   V.    BOND.       HOUSE,    1879.  321 

in  the  recount  by  the  aldermen  there  was  reason  to  suppose  that  certain  votes  for 
"Dr.  Bowker"  and  "  II.  L.  Bowlier"  were  not  returned  by  them  as  so  cast,  but,  if 
returned  at  all,  were  classified  with  fourteen  votes  returned  as  cast  for  "  all  others  " ; 
that  other  persons  assisted  the  aldermen  in  making  the  recount ;  and  that  there  was 
a  dispute  as  to  how  many  votes  were  upon  the  recount  returned  as  cast  for  '•  all 
others." 

Napoleon  B.  Bryant  for  petitioner. 

Albert  E.  Pillsbury  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  peti- 
tion of  Horace  L.  Bowker  for  the  seat  as  representative  for  the 
fourteenth  Suffolk  district  now  held  by  George  H.  Bond,  and 
asking  that  the  votes  *of  the  said  district  be  recounted,  have  duly 
considered  the  same,  and  report  as  follows  :  The  fourteenth  Suf- 
folk district  comprises  ward  14  of  the  city  of  Boston,  and  is 
entitled  to  two  representatives.  The  grounds  relied  upon  in  the 
petition,  are  as  follows  :  That,  at  the  state  election  held  upon  the 
5th  day  of  November  last  the  petitioner  was  a  candidate  for  the 
legislature  in  said  district,  and  did  receive  at  that  election  a  plu- 
rality of  the  legal  votes  cast  at  said  election,  as  shown  by  the 
sworn  returns  of  the  election  officers  of  said  district,  duly  certi- 
fied and  returned,  and  was  therefore  legally  elected  ;  that  the 
ballots  were  subsequently  recounted  by  a  committee  of  the  board 
of  aldermen  of  the  city  of  Boston,  who,  without  warrant  of  law, 
did  reject  certain  ballots  cast  for  petitioner,  owing  to  some  tech- 
nical error  in  writing  or  spelling  petitioner's  name  upon  said  bal- 
lots ;  and  did  otherwise  change  the  result  of  the  sworn  returns  of 
the  election  officers  ;  and  did  thereby  cause  the  certificate  of  elec- 
tion to  be  given  to  George  H.  Bond,  the  sitting  member,  without 
having  received  a  plurality  of  the  votes,  as  required  by  law  ;  that 
great  injustice  has  been  done  him  and  the  voters  of  his  district 
by  the  action  of  the  board  of  aldermen  ;  and  that  George  H. 
Bond  did  not  receive  a  plurality  of  the  votes  cast  upon  the  day 
of  election,  and  therefore  is  not  entitled  to  a  seat ;  and  petitioner 
prays  that  said  seat,  of  which  he  believes  himself  now  unjustly 
deprived,  may  be  granted  to  him. 

At  the  hearing  before  the  committee,  the  counsel  for  the  peti- 
tioner was  allowed  to  put  in  as  evidence  a  paper,  duly  certified  by 
the  city  clerk  of  Boston,  to  be  a  copy  of  the  return  from  ward 
14,  of  the  results  of  the  election  for  representatives,  as  shown 
by  the  original  returns  of  the  ward  officers,  and  by  the  recount 
of  the  board  of  aldermen.  By  this  paper  it  appeared  that  by 
the  original  return  the  sitting  member  received  in 

Ward  14, 1,133  votes.  ^ 

Aud  the  petitioner, 1,142     " 

While  "all  others  "had 12     " 


322  MASSACHUSETTS    ELECTION   CASES  —  1853-1885. 

By  the  recount  it  appears  that  the 

Sitting  member  had 1,141  votes. 

The  petitioner        . 1,138     " 

"  All  others " 14     " 

The  counsel  for  petitioner  then  called  the  following  witnesses, 
who,  having  been  sworn,  testified  substantially  as  follows  :  — 

Alvah  H.  Peters,  Messenger  of  City  Council.  Cannot  say 
whether  all  the  committee  for  recounting  votes  were  present  at 
this  recount  or  not,  as  it  was  made  with  other  recounts,  and  I 
don't  remember  occasion.  I  don't  remember  how  long  it  took 
to  recount.  Mr.  McCleary,  city  clerk,  and  Mr.  Priest,  assistant 
city  clerk,  and  myself,  assisted.  I  was  in  and  out,  and  had 
nothing  to  do  with  counting.  The  committee  counted,  and  I 
can't  tell  how  it  was  summed  up.  The  counting  took  place  on 
fourth  floor  of  Cit}'  Hall,  and  the  room  has  four  windows  in  it. 
If  I  remember  this  case,  the  counting  took  place  between  4  p.m. 
and  9  p.m.  ;  but  I  don't  know  whether  it  was  continuous  or  not. 
I  think  Mr.  Priest  was  keeping  tally. 

Cross-examined.  No  one  had  anything  to  do  with  the  count- 
ing but  members  of  the  committee,  and  I  don't  know  from  my 
personal  knowledge  what  Mr.  Priest  was  doing.  Don't  remember 
who  of  the  committee  were  there  ;  but  Alderman  Viles  was  there 
all  the  time. 

John  T.  Priest.  Have  been  assistant  city  clerk  for  five  years. 
I  was  present  all  through  the  recounting  of  ballots  by  committee, 
and  had  some  six  days'  and  six  nights'  work :  so  my  memory  is 
somewhat  blurred.  I  kept  record  of  precincts,  and  Mr.  McCleary 
consolidated  the  figures  for  the  report.  The  figures  were  made 
by  the  committee,  and  when  they  finished  precincts  they  gave  me 
the  figures.  On  this  recount  all  of  the  committee  were  present ; 
and  two  would  take  a  box  and  count,  and  some  two  of  the  others 
would  verify  count.  I  didn't  examine  ballots  particularly,  but 
saw  some  pasted,  and  perhaps  one  pinned.  I  don't  know  par- 
ticularly about  the  ballots  for  "  all  others."  Sometimes  ballots 
are  thrown  in  the  wrong  ward,  and  then  they  are  set  out ;  but 
if  a  ballot  contains  the  name,  say,  of  John  Smith,  or  any  one 
else  who  is  not  a  candidate,  it  is  not  generally  noted  separately, 
as  it  does  not  alter  return  (witness  shown  paper  set  forth  above). 
I  have  no  personal  knowledge  of  "all  others  14."  Suppose  I 
added  those  figures  up  ;  and  I  think  no  one  was  in  the  commit- 
tee's room  excepting  Mr.  McCleary,  myself,  and  messenger,  dur- 
ing the  counting:. 

Samuel  F.  McCleary.  I  am  city  clerk ;  these  votes  were  re- 
counted November  7,  upon  request  for   a   recount.     Each  ward 


I 


BOWKER   V.    BOND.      HOUSE,    1879.  323 

has  a  bos  which  is  put  in  my  charge  till  called  for.  "When  the 
recount  took  place,  the  boxes  were  opened,  and  two  of  the  com- 
mittee took  charge  of  a  precinct.  One  of  them  would  count  the 
votes  ;  and  then  -the  other  would  recount,  and  verify  the  first 
count.  I  took  down  the  results  of  the  counts,  and  have  them  in 
my  own  handwriting ;  only  the  committee  counted.  I  recorded 
results,  and  they  correspond  with  the  return.  (The  original  of 
paper  set  forth  above  was  shown  to  witness.)  I  recognize  that  as 
the  only  return,  and  there  is  no  other  paper  like  it.  It  is  taken 
from  a  book  containing  ward  returns,  and  from  precinct  list.  In 
my  precinct  I  often  aggregate  by  saying  all  others.  Our  practice 
is  to  record  the  names  of  candidates,  and  not  to  mind  small  fel- 
lows of  a  vote  or  two.  Every  vote  cast  for  Bowker,  Bond,  Far- 
rell,  and  Noyes,  I  undertake  to  say  is  counted  and  recorded.  I 
know  nothing  personally  about  the  correctness  or  incorrectness, 
but  do  know  our  custom.  This  was  the  first  recount  we  had. 
The  committee  began  at  four  o'clock,  and  finished  it  in  two 
hours  ;  then  sealed  up  votes,  and  took  another  ward. 

Mr.  Hutchinson.  Salesman  for  Suffolk  Brewing  Company.  "Was 
clerk  of  precinct,  and  Marcus  Morton  was  warden.  Counted  the 
votes,  and  the  warden  helped.  Counted  straight  and  crooked  bal- 
lots, and  gave  every  man  his  right  number.  I  did  not  verify 
count,  and  did  not  count  all  the  ballots  but  once.  Counted  some 
portion  of  them  over,  and  it  agreed  with  warden's  count ;  and,  if 
it  didn't,  we  made  it.  Inside  of  an  hour  all  ballots  were  counted. 
After  polls  closed,  turned  in  my  returns.  Supervisor  counted, 
and  compared  with  check-list ;  and  it  varied  but  one  or  two. 
Supervisor  counted  all  ballots  that  were  deposited,  but  can't  say 
whether  he  counted  votes  for  representatives.  I  think  I  counted 
correctly. 

Mr.  Cherrington.  Inspector  precinct  3,  ward  14.  Think  I  saw 
one  or  two  votes  for  "  Dr.  Bowker"  in  pencil ;  but  I  won't  swear 
to  it.  My  impression  is  that  "  Dr.  Bowker "  was  written  over 
erased  name  ;  but  can't  tell  whether  it  was  over  a  representative's 
name. 

Edwai'd  F.  O'Brien.  Clerk  in  the  employ  of  the  John  Simmons 
estate,  was  clerk  of  precinct  3,  ward  14.  Inspector  took  the  bal- 
lots out,  and  I  counted  them.  My  tally  sheet  corresponded  with 
count.  I  didn't  go  over  ballots  but  once.  Saw  every  ballot ;  but 
don't  remember  any  ballot  with  "  Dr.  Bowker  "  on  it. 

William  A.  Guild.  Supervisor  precinct  5,  ward  14.  I  saw 
no  ballots  for  "  Dr.  Bowker."     Saw  one  ballot  with  pin  in  it. 

Mr.  McLaughlin.  Supervisor.  Saw  ballot  with  a  pin  in  it.  One 
lot  contained  123  clean  representative  ballots  ;  that  is,  there  were 


324  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

Ill  ballots  clean,  and  12  scratched  for  representatives.  I  think 
I  saw  •'  Dr.  Bowker"  over  senatorial  name  ;  and,  in  133  ballots, 
one  showed  the  name  of  "  Dr.  Bowker."  Don't  know  whether 
''Dr.  Bowker's"  vote  was  counted  or  not.  The  name  "Dr. 
Bowker"  was  placed  over  name  of  candidate  for  senator  from 
fifth  Suffolk  district. 

Henry  S  Treadwell.  Supervisor  precinct  5.  Remember  sev- 
eral ballots  torn  apart,  and  pinned  together.  The  warden  pinned 
first  ballot  together  which  had  cut  two-thirds  down  by  printing- 
press,  but  above  representative  vote,  I  think. 

Albert  F.  Lauten.  State  liquor  agent  of  New  Hampshire.  I 
found  Mr.  Bowker  at  City  Hall ;  and  he  showed  me  a  paper  he  had, 
purporting  to  be  signed  by  Clinton  Viles.  Examined  it ;  and  it 
seemed  to  credit  principal  candidates,  and  then  said,  "  All  others, 
48."  Just  below,  the  candidates  again  appeared  to  have  been 
credited  with  their  votes;  and  the  words  "all  others"  again 
appeared  ;  but  the  number  was  changed  to  35. 

Upon  the  foregoing  evidence,  the  counsel  for  the  petitioner 
claims  to  have  shown  a  strong  probability  that  the  results  arrived 
at  by  the  ward  officers  were  correct,  and  consequently  the  count 
by  the  aldermen  incorrect.  But  the  majority  of  the  committee, 
upon  a  careful  inspection  of  the  evidence,  are  led  to  a  different 
conclusion  ;  for  it  will  be  seen,  that  although  the  ward  oflflcers 
may  have  been  very  competent  men,  and  performed  their  duty 
very  faithfully,  yet  the  fact  remains  by  their  own  evidence,  they 
counted  the  ballots  but  once  ;  while  the  testimony  of  McCleary 
and  Priest  is  to  the  effect  that  the  votes  of  every  precinct  of  that 
ward  were  counted  first  by  one  of  the  committee  of  the  board  of 
aldermen,  and  then  recounted,  and  the  results  verified  by  another 
meml)er  of  the  committee. 

Again  :  the  petitioner  claims  that  he  is  entitled  to  a  recount  on 
the  ground  of  the  illegalit}'  of  the  record,  wherein  is  set  forth  the 
words  and  figures,  "  all  others,  14." 

Upon  this  point  it  may  be  well  to  inquire  what  the  true  record 
oi'  return  is  ;  and  the  law  upon  this  question  is  found  in  the  Act 
of  1876,  chap.  188,  sect.  4  ;  Pub.  Stats.,  chap.  7,  sects.  36,  37,  and 
38,  and  is  as  follows  :  "If,  within  three  days  next  following  the 
day  of  any  election,  two  or  more  qualified  voters  of  any  ward 
shall  file  with  the  city  clerk  a  statement  in  writing,  that  they  have 
reason  to  believe  that  the  returns  of  the  ward  officers  are  erro- 
neous, specifying  wherein  they  deem  them  in  error,  said  city  clerk 
shall  forthwith  transmit  such  statement  to  the  board  of  aldermen 
or  the  committee  thereof  appointed  to  examine  the  returns  of 
said  election.     The  board  of  aldermen,  or  their  committee,  shall 


BOAVKER   V.    BOND.      HOUSE,    1879.  325 

thereupon,  and  within  five  clays,  Sunday  excepted,  next  following 
the  day  of  election,  open  the  envelope  and  examine  the  ballots 
thrown  in  said  ward,  and  determine  the  questions  raised  ;  they 
shall  then  again  seal  the  envelope  either  with  the  seal  of  the  city 
or  a  seal  provided  for  the  purpose,  and  shall  indorse  upon  said 
envelope  a  certificate  that  the  same  has  been  opened,  and  again 
sealed  by  them  in  conformity  to  law  ;  and  the  envelope,  sealed  as 
aforesaid,  shall  be  returned  to  the  city  clerk.  Said  city  clerk, 
upon  the  certificate  of  the  board  of  aldermen,  or  of  their  com- 
mittee, shall  alter  and  amend  such  of  the  ward  returns  as  have 
been  proved  to  be  erroneous,  and  such  amended  returns  shall 
stand  as  the  true  returns  of  the  ward." 

Under  the  foregoing  section,  it  would  seem  that  the  only  true 
return  before  this  committee  is  the  one  made  by  the  board  of 
aldermen  ;  and  it  does  not  appear  that  they  are  restricted  to  any 
set  form  in  making  such  return ;  on  the  contrary,  their  only 
function  seems  to  be  "to  determine  the  questions  raised,"  and 
'•  alter  and  amend  such  of  the  ward  returns  as  have  been  proved 
to  be  erroneous  ;  "  and  upon  this  point  there  has  been  no  evi- 
dence produced  tending  to  show  that  the  aldermen  have  not  prop- 
erly done  their  dut}^,  or  have  been  guilty  of  any  carelessness, 
negligence,  or  fraud. 

Upon  reviewing  the  precedents  and  authorities  upon  questions 
of  this  kind,  the  rule  seems  to  have  been  firmly  established  and 
followed,  that  the  sitting  member  holding  a  certificate  of  election 
has  a  prima  facie  case  ;  and  his  title  is  not  to  be  put  in  peril, 
unless  some  good  reason  is  given.  Davis  v.  Murphy,  ante, 
p.  177;  French  v.  Bacon,  ante,  p.  184;  Scribner  v.  Keyes,  ante, 
p.  29G  ;  Taylor  v.  Carney,  ante,  p.  228  ;  O'Connor  v.  Locke,  ante, 
p.  310. 

The  majority  of  the  committee,  therefore,  find  that  the  petitioner 
has  not  shown  that  the  committee  of  the  board  of  aldermen  were 
guilty  of  any  carelessness,  irregularit}-,  or  fraud,  or  any  conduct 
that  would  invalidate  their  return,  or  deprive  their  oflScial  acts  of 
the  credit  to  which  they  would  otherwise  be  entitled  ;  and  they 
therefore  recommend  that  the  petitioner  have  leave  to  withdraw. 

A  minority  of  the  committee,  Messrs.  Jenkins,  Mooney  and 
Lyon,  submitted  the  following  views  :  — 

The  undersigned,  a  minority  of  the  Committee  on  Elections,  beg 
leave  to  regret  their  inability  to  agree  with  the  majority,  and  do 
submit  the  following  :  — 

In  order  that  a  proper  understanding  of  the  case  may  be  had,  it 
may  be  necessary  to  state  that  the  legislature  at  its  last  session 
passed  a  law  dividing  the  different  wards  of  the  city  of  Boston  into 


326  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

polling-places  of  about  five  hundred  voters  each.  Under  the  pro- 
visions of  that  act,  in  the  first  instance,  the  mayor  appointed,  from 
the  great  political  parties,  the  precinct  oflScers,  consisting  of  a  war- 
den clerk  and  two  inspectors  for  each  precinct.  In  addition  to 
the  above-named  officers,  there  were  two  United  States  supervisors 
of  elections,  appointed  by  one  of  the  justices  of  the  tJnited  States 
circuit  court,  who  also  counted  the  ballots.  By  this  arrangement, 
it  appeared  that  six  men  were  required  to  receive,  sort  and  count 
the  ballots  in  each  precinct.  The  time  allowed  for  this  work  was 
not  less  than  eight  hours,  or  during  the  time  the  polls  were  kept 
open,  and  as  much  time  subsequently  as  the  ward  officers  might  re- 
quire. This,  in  connection  with  the  fact  of  the  limited  number  of 
ballots  to  be  counted,  —  five  hundred,  or  less,  —  would  seem  to 
justify  the  assertion  that  every  means  possible  had  been  taken  to 
secure  a  just  and  fair  election,  with  ample  opportunity  for  making 
correct  and  proper  returns. 

In  the  case  now  in  hearing,  it  appeared  that  in  the  fourteenth  Suf- 
folk representative  district  (fourteenth  ward  of  the  city  of  Boston), 
upon  the  day  of  election,  Nov.  5,  1878,  Horace  L.  Bowker  obtained 
a  plurality  of  nine  votes  for  representative  to  the  general  court,  as 
shown  by  the  returns  of  the  ward  officers,  in  the  five  precincts 
which  comprise  the  district,  over  George  H.  Bond,  who  now  holds 
a  seat  in  this  house.  By  a  subsequent  recount  of  the  votes  of  said 
district  by  a  committee  of  the  board  of  aldermen  of  the  city  of 
Boston,  the  certificate  of  election  was  given  to  the  sitting  member 
by  a  plurality'  of  three  votes ;  thereby  making  a  difference  of 
twelve  votes,  as  compared  with  the  ward  officers'  returns. 

The  petitioner  claimed,  and  it  was  not  contradicted,  that  the 
ward  officers  appointed  by  the  ma3^or  were  most  excellent  and  com- 
petent men,  and  discharged  their  duties  in  a  faithful  and  impartial 
manner ;  no  evidence  being  introduced  tending  to  show  that  there 
was  any  illegal  or  improper  conduct  on  the  part  of  the  precinct 
officers  in  counting  the  ballots  or  making  their  returns.  The  clerks 
in  two  of  the  polling-places  where  the  greatest  errors  appear  to  exist 
by  the  aldermanic  recount,  testified  before  j'our  committee,  that,  in 
their  opinion,  no  such  errors  were  probable  or  possible.  The  clerk 
in  the  third  precinct,  where  the  aldermen  claim  to  find  eight 
errors  in  a  total  vote  of  four  hundred  and  fifty-eight,  on  oath 
testified  that  he  kept  a  tally-sheet,  which  he  afterwards  verified, 
and  found  to  agree  exactly  with  the  returns  made.  In  the  first 
precinct,  the  aldermen  claim  that  thirteen  errors  existed  in  a 
total  vote  of  four  hundred  and  sixty-two.  The  petitioner  offered 
to  prove,  if  sufficient  opportunity  was  given,  that  the  most  care- 
ful count  was  made  in  this  precinct,  and  in  all  other  precincts ; 


BOWKER   V.    BOND.       HOUSE,    1879.  327 

but  a  majority  of  your  committee  ruled  that  evidence  tending  to 
show  the  accuracy  of  the  ward  officers'  count  and  returns  was  imma- 
terial, and  decided  to  hear  no  further  testimony  on  this  point. 

The  minority  of  your  committee  believe  that  evidence  tending  to 
show  the  accuracy  or  the  manner  in  which  the  ward  oflScers  made 
their  returns,  is  of  vital  importance  in  this  case.  From  the  evidence 
before  your  committee,  it  appears  that  the  ward  officers  in  the 
several  precincts,  five  in  all,  made  up  their  returns  separately, 
and  sent  the  same  to  the  cit^^  clerk,  as  the  law  directs  ;  and  it  fur- 
ther -appears,  from  the  aldermanic  recount,  that  no  clerical  errors 
were  found  in  any  of  the  said  precinct  returns.  The  mistakes  most 
likely  to  occur  in  such  cases  are  errors  in  addition,  overlooking  a 
package  of  ballots,  or  placing  a  tally  in  the  wrong  column.  The 
fact  that  the  ward  or  precinct  officers,  twenty  in  all,  made  five 
detailed  reports  with  no  clerical  errors  forms  of  itself  strong  pre- 
sumptive evidence  that  their  work  was  done  in  a  thorough  and  sat- 
isfactory' manner. 

We  think  that  where  no  fraud  is  alleged,  or  clerical  errors  found, 
the  strongest  reasons  should  be  shown  in  all  cases  for  setting  aside 
the  returns  of  the  sworn  ward  officers,  who  are  surrounded  with 
proper  safeguards,  and  substituting  therefor  the  returns  of  a  limited 
tribunal  with  no  safeguard  whatever,  who  may  or  may  not  dis- 
charge their  duties  in  a  proper  manner,  leaving  no  means  of  redress 
except  the  will  or  favor  of  the  final  tribunal  to  which  an  appeal 
must  be  made.  In  this  case  we  have  the  detailed  count  and  returns 
of  twent}'  men  as  against  five  men.  In  the  former  count  no 
clerical  errors  are  found ;  in  the  latter  we  have  no  means  of 
knowing.  Whether  the  board  of  aldermen  did  or  did  not  make 
errors  can  only  be  determined  by  examining  their  returns.  This 
the  committee  have  an  undoubted  right  to  do  ;  and  we  believe,  in 
justice  to  the  people  of  that  district  and  all  parlies  concerned,  it 
should  be  done.  The  ditference  between  the  recount  of  the  com- 
mittee of  the  board  of  aldermen,  and  the  returns  of  the  ward  officers, 
since  no  clerical  errors  appear  in  the  ward  returns,  must,  we  think, 
of  necessity  arise  from  some  error  in  the  aldermanic  recount,  or  a 
difference  in  sorting  the  ballots.  The  petitioner  claims  that  cer- 
tain ballots  were  cast  for  him  which  did  not  bear  his  full  Christian 
name  upon  them,  —  such  as  "  Dr.  Bowker,"  the  name  he  is  com- 
monly called  by  ;  and  others  with  his  initials,  "  H.  L.  Bowker," 
instead  of  the  full  name,  "  Horace  L.  Bowker;"  One  of  the 
insi^ectors  swore  that  there  were  several  ballots  cast  in  his  precinct 
with  simply  the  name  of  "Dr.  Bowker"  written  in  pencil  upon 
them,  as  alleged  b}'^  the  contestant.  The  petitioner  ofi'ered  to  pro- 
duce other  witnesses,  ward  officers,  etc.,  who  would  teslif}"^  that 


328  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

ballots  with  simpl}-  the  title  "  Dr.  Bowker  "  were  thrown  in  other 
precincts.  If  such  be  the  fact,  the  rejection  of  such  ballots  b}'  the 
board  of  aldermen  might  account  for  the  difference  in  their  returns 
from  that  of  the  ward  officers.  If  the  aldermen  discharged  their 
duties  in  a  legal  and  proper  manner,  they  certainly  would  not 
count  ballots  cast  for  "Dr.  Bowker"  as  Horace  L.  Bowker,  but 
would  return  them  under  a  separate  head.  The  policy  of  the  legis- 
lature has  been  in  all  such  cases  to  allow  the  intent  of  the  voter  to 
be  recognized,  when  the  party  voted  for  has  been  clearly  identified 
by  the  ballot  thrown.  The  initials,  spelling  of  the  name,  etc.,  has 
never  been  considered  of  as  much  importance  as  the  intent  of  the 
voter.  In  proof  of  this,  we  cite  several  cases  where  persons  have 
been  unseated  or  otherwise,  in  our  house  of  representatives,  who 
held  their  certificates  of  election  through  some  technical  eiTor  in 
the  ballots  cast  for  their  opponent.  Shaw  v.  Buckminster,  ante, 
p.  221;  Hood  v.  Potter,  ante,  p.  217;  James  Pratt,  Jr..  RJass. 
Contested  Election  Cases,  Cushing,  S.  &  J.  236  ;  Coggswell  v. 
McNeil,  ante,  p.  108  ;  Chapin,  Jr.  v.  Snow,  ante,  p,  96  ;  Wright  v. 
Hooper,  ante,  p.  100;  Arnold  v.  Ghampney,  ante,  p.  121  ;  Hobbs 
V.  Bartholmesz,  ante,  p.  182.  We  also  refer  to  the  case  which  has 
come  before  your  committee  the  present  session,  Pope  v.  Blake, 
ante,  p.  320.  In  this  case  the  request  of  the  petitioner  to  have  the 
ballots  recounted  was  granted  without  the  production  of  any  evi- 
dence whatever,  except  the  ex  parte  statement  of  the  petitioner's 
counsel,  and  against  the  remonstrance  of  the  counsel  of  the  sitting 
member,  who  was  not  allowed  a  hearing,  much  less  an  opportunity 
to  present  his  arguments  in  the  case.  In  the  case  now  in  hearing, 
the  strongest  evidence  is  demanded  why  a  recount  of  the  ballots 
should  be  had,  and,  as  a  minority  of  3'our  committee  believe,  an 
unreasonable  demand  is  made  upon  the  petitioner,  —  i.e.,  to  prove 
the  inaccuracy  of  the  aldermanic  recount,  —  while  at  the  same  time 
the  committee  refuse  to  hear  testimony  to  substantiate  the  correct- 
ness of  the  original  returns  of  the  ward  officers,  or  even  to  impeach 
the  accuracy'  of  the  amended  return,  as  reported  by  the  board  of 
aldermen,  and,  still  further,  refuse  to  recount  the  votes  which  were 
presented  to  the  committee  ;  which  latter  action  would  settle  the 
dispute  beyond  all  cavil. 

The  method  of  recounting  the  ballots  by  a  committee  of  the 
board  of  aldermen  in  this  case,  if  strictly  legal,  could  not  be  satis- 
factory, for  want  of  a  proper  record,  if  for  no  other  reason.  The 
law  requires  that  the  selectmen  or  ward  officers  shall  make  a  return 
of  all  the  names  voted  for,  and  declare  the  same  in  "open  town 
meeting,"  etc.  If  boards  of  aldermen  in  making  recounts  do  not 
come  under  the  provision  of  this  law,  it  furnishes  the  strongest 


BOWKER   V,    BOND.       HOUSE,    1879.  329 

reason  for  a  subsequent  examination  of  their  returns  in  all  closely 
contested  elections.  In  this  case  it  will  be  seen  that  they  have  made 
returns  in  a  very  imperfect  manner,  by  recording  scattering  votes 
for  various  persons  from  one  to  twenty-one,  and  then  classifying 
fourteen  votes  under  the  head  of  "  all  others."  Why  are  not  the 
names  of  the  fourteen  others  given,  when,  in  some  instances,  one, 
two  and  three  votes  are  properly  recorded?  If  this  vote  is  to  be 
considered  a  legal  and  proper  one,  upon  the  same  principle  might 
have  been  classified  under  the  head  of  "all  others"  every  vote 
thrown,  except  for  the  successful  candidates  ;  and,  as  the  record 
stands  in  this  case,  the  aldermen  have  designated  under  the  head 
of  "  all  others"  a  sufficient  number  of  votes  to  change  the  result 
of  the  election  many  times  over.  Now  if,  as  the  petitioner  alleges, 
votes  were  thrown,  with  his  name  or  initials  not  correctly  borne 
upon  the  ballots,  they  must  be  found  under  the  head  of  "  all 
others ; "  and  if  the  sworn  returns  of  election  officers  are  to  be  set 
aside,  and  imperfect  ones  substituted,  it  is,  as  we  believe,  the 
imperative  dut}^  of  the  legislature  to  make  a  proper  investigation 
in  all  such  cases ;  because,  if  such  returns  are  accepted  as  final,  it 
is  possible  for  boards  of  aldermen  in  future  to  take  advantage  of 
such  precedents,  and  to  classify  a  sufficient  number  of  votes  under 
the  head  of  "all  others"  for  the  purpose  of  electing  a  favorite 
candidate,  and  defeating  the  will  of  the  people. 

The  law  requires  that  the  board  of  aldermen,  or  a  committee 
thereof,  shall  make  a  recount  of  ballots  on  petition  of  ten  legal 
voters,  etc.*  No  other  persons  ai-e  mentioned  or  implied  in  this 
act ;  but  in  this  case  it  appears,  from  the  testimony  of  two  wit- 
nesses, that  the  assistant  city  clerk  did  do  a  certain  part  of  the 
work  by  sorting  and  counting  the  ballots  ;  he  also  kept  the  tallies, 
and  rendered  other  assistance.  It  may  be  legal  for  the  aldermen 
to  call  in  an}'  one  who  is  at  hand  to  assist  them  in  sorting  and 
counting  votes,  and  in  making  returns;  but,  if  so,  the  practice  is 
attended  with  great  danger  ;  and  when  certificates  of  election  are 
given  upon  such  returns,  which  set  aside  the  records  of  sworn 
ward  officers,  declared  in  "  open  town  meeting,"  as  the  law  directs, 
it  ill  becomes  the  legislature,  we  think,  to  refuse  the  most  full  and 
searching  investigation. 

The  cit}'  clerk  testified  that  he  was  present  during  this  recount, 
but  that  he  took  no  part  in  sorting  and  counting  the  ballots  ;  con- 
sequently that  he  had  no  knowledge  of  what  votes  were  counted  or 
rejected  for  the  petitioner.  Councilman  Albert  F.  Lauten,  another 
witness,  testified  that  he,  in  company  with  the  petitioner,  examined 

*  Pub.  Stats.,  chap.  7,  sects.  36-38. 


330  SIASSACHUSETTS    ELECTION   CASES — 1853-1885. 

what  purported  to  be  a  copy  of  the  aldermen's  recount,  and  swore  in 
the  most  positive  manner  to  the  signature  of  the  chairman  of  that 
commiLtee.  He  further  testified,  that,  in  the  report  so  signed,  thirty- 
five  votes  were  recorded  for  "  all  others"  instead  of  fourteen,  as 
shown  in  the  certified  returns  of  the  city  clerk  annexed.  Further 
testimony  was  offered  to  show  that  the  returns  exhibited  at  City 
Hall  did  not  agree  with  the  certified  returns,  but  was  ruled  out 
by  the  committee.  The  counsel  for  the  silting  member  presented 
another  paper,  which  he  claimed  was  a  copy  of  the  aldermen's 
recount,  and  differing  from  the  certified  copy  annexed  ;  but,  as  this 
paper  was  not  received  by  your  committee,  it  became  no  part  of 
the  evidence  in  this  case.  AVhat  further  light  upon  this  subject 
might  have  been  produced,  had  the  petitioner  been  allowed  to  pro- 
duce other  evidence,  cannot  be  determined  ;  but,  if  the  evidence 
already  produced  is  to  be  relied  upon,  the  records  at  City  Hall 
must  have  undergone  some  changes  after  the  votes  had  been 
counted,  and  the  certificate  given  to  the  sitting  member.  Great 
stress  has  been  laid  upon  the  fact  that  towns  should  have  a  recount 
of  votes  by  the  legislature,  while  cities  should  rely  upon  the  re- 
count of  the  board  of  aldermen  ;  but  we  can  see  no  good  reason 
for  this  argument,  when  the  legislature  has  the  exclusive  right  to 
judge  of  the  qualifications  of  its  members.  In  our  opinion,  the 
legislature  should  in  no  instance,  when  a  reasonable  doubt  exists 
regarding  the  accuracy  of  election  returns,  surrender  its  great  con- 
stitutional right  to  a  board  of  aldermen,  or  any  committee  thereof. 
The  law  does  not  contemplate  the  recount  of  votes  by  a  board  of 
aldermen  to  be  final ;  for  it  requires  that  ballots,  check-lists,  etc., 
be  carefully  sealed  and  preserved,  that  they  may  again  be  recounted 
and  examined  by  the  legislature,  if  so  desired.  We  would  by  no 
means  wish  to  establish  the  precedent  by  which  anj^  part}'  who 
might  fail  of  an  election  could  come  here  and  claim  a  recount  of 
votes,  with  the  hope  of  receiving  benefit  therefrom  ;  neither  would 
we  establish  the  precedent  that  any  party  who  obtains  a  certificate 
of  election  through  an  intermediate  tribunal  by  reason  of  techni- 
calities, in  opposition  to  the  will  of  the  people,  can  retain  his  seat 
without  question  and  proper  investigation. 

With  such  evidence  as  we  have  before  us,  we  are  forced  to 
believe,  in  view  of  such  discrepancies  as  appear  to  exist  in  this 
case,  that  great  injustice  will  be  done  the  petitioner  and  the  people 
of  his  district,  if  so  reasonable  a  request  as  recounting  the  ballots 
is  refused.  The  legislature  has,  in  repeated  instances,  gone  back 
of  the  returns,  and  asserted  its  just  right  to  receive  or  reject  them  ; 
and  in  this  connection  we  must  respectfully  call  your  attention  to 
the  case  of  Shaw  v.  Buckminster,  ante,  p.  221  ;  the  case  of  Davis 


FILKINS   V.    SPILL ANE.       HOUSE,    1879.  331 

V.  Murphy^  ante,  p.  177;  to  the  case  of  Haskell  v.  Closson,  ante, 
p.  233  ;  in  which  the  committee  on  elections  refused  to  recount 
the  ballots,  and  were  ordered  to  do  so  hy  vote  of  the  house. 

Other  cases  might  be  cited,  if  deemed  necessar}' ;  and  in  view  of 
all  the  facts  in  the  case,  or  bearing  upon  it,  we  think  that  sulHcient 
evidence  has  been  produced  to  warrant  the  belief  that  the  original 
returns  made  b}'  the  ward  officers  are  more  reliable  than  the  subse- 
quent returns  of  the  board  of  aldermen. 

That  no  injustice  may  be  done,  that  the  rights  of  all  ma}'  be 
respected,  that  the  laws  may  be  maintained,  and  that  the  will  of 
the  people  ma}'  be  obeyed,  we  most  respectfully  recommend  the 
passage  of  the  following  resolution  :  — 

[The  resolution  ordered  the  committee  to  recount  the  votes  for 
the  representatives  in  the  district.  The  house  ordered  the  report 
to  be  recommitted  with  instructions  to  recount  the  votes.  H,  J., 
1879,  p.  95  The  committee  thereupon  made  such  recount,  and 
reported  in  House  Document,  No.  59,  Jan.  31,  1879,  that  by  the 
recount  the  sitting  member  had  exactly  the  plurality  found  by  the 
committee  of  the  board  of  aldermen.  The  committee  reported  that 
the  petitioner  have  leave  to  withdraw.  The  report  of  the  com- 
mittee was  accepted.     H.  J.,  1879,  p.  167.] 


George  E.  Filkins  v.  Timothy  B.  SpilLx^ne. 

House  Document,  No.  66.     February  3,  1879.     Report  by  John  H.  Sher- 
burne, Chairman. 

Eligibility.  Citizenship.  Certijicate  of  Naturalization  conclusive.  Where  the  rep- 
resentative returned,  depended  for  eligibility  as  a  citizen,  upon  the  naturalization  of 
his  father,  during  his  own  minority,  it  was  held  that  the  certificate  of  naturalization 
issued  to  the  father  was  conclusive  upon  the  question  whether  his  primary  declara- 
tion was  made  in  a  court  of  competent  jurisdiction. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  George  E.  Filkins  for  the  seat  as  representative  for  the  sixteenth 
Suffolk  district,  now  occupied  by  Timothy  B.  Spillane,  have  duly 
considered  the  same,  and  report  as  follows  :  — 

The  sixteenth  Suffolk  district  consists  of  ward  IG  of  the  city 
of  Boston. 


332  MASSACHUSETTS   ELECTION    CASES 1853-1885. 

The  ground  upon  which  the  petitioner  rests  is,  that  Spillane, 
the  sittinof  member,  was  not  a  naturalized  citizen  at  the  time  of 
his  election  as  representative,  Nov.  5,  1878.  The  sitting  mem- 
ber, Spillane,  answers  that  his  father,  Patrick  Spillane,  became  a 
duly  naturalized  citizen  of  the  United  States  June  4,  18G0  ;  and, 
as  he  was  a  minor  at  that  time,  when  he  reached  the  age  of 
twenty-one  years  he  thereby  became  a  citizen  of  the  United 
States.  The  sitting  member  put  in  evidence  a  certified  copy  of 
the  certificate  of  naturalization  granted  to  his  father,  Patrick  Spil- 
lane, by  the  circuit  court  of  the  United  States  for  the  district  of 
Massachusetts,  and  dated  June  4,  1860,  The  petitioner  admits 
that  the  said  certificate  was  duly  and  properly  issued  to  said 
Si)illaue,  but  claims  that  the  Newburyport  police  court,  before 
which  said  Spillane  made  his  primary  declaration  in  1854,  was 
not  a  court  of  competent  jurisdiction  to  receive  the  same,  by 
reason  of  its  not  having  a  clerk,  and  thereby  not  being  a  court  of 
record. 

The  case  naturally  resolves  itself  into  two  questions  :  — 

First,  Is  it  proper  and  right  to  go  behind  the  certificate  of  nat- 
uralization granted  by  the  circuit  court  of  the  United  States  ? 

Second,  If  yes,  then  was  the  Newburyport  police  court  a  proper 
tribunal  to  receive  the  primary  declaration  of  Patrick  Spillane  at 
the  time  he  made  it? 

Upon  the  first  question  the  committee  are  unanimous  in  decid- 
ing that  it  is  unnecessary  to  go  farther  than  the  judgment  of  the 
circuit  court  in  the  matter ;  and,  in  so  doing,  they  follow  the  gen- 
eral current  of  decisions  in  this  respect.  Upon  this  point  it  was 
held  by  Chief  Justice  Marshall,  in  Spratt  v,  Spratt,  4  Peters,  407, 
and  quoted  in  Quirk  v.  McDonald,  ante,  p.  229,  that  the  various 
acts  upon  the  subject  submit  the  decision  on  the  right  of  aliens  to 
admission  as  citizens  to  courts  of  record.  They  are  to  receive 
ti;stimony,  to  compare  it  with  the  law,  and  to  judge  on  both  law 
and  fact.  The  judgment  is  entered  on  record  as  the  judgment  of 
the  court.  It  seems  to  us,  if  it  be  in  legal  form,  to  close  inquiry, 
and,  like  every  other  judgment,  to  be  complete  evidence  of  its 
own  validity. 

It  is  therefore  unnecessary  to  consider  the  second  question 
raised,  as  the  «ase  is  finished  l)y  the  disposition  of  the  first ;  and 
the  committee  therefore  recommend  that  the  petitioner  have  leave 
to  withdraw. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1879,  p. 
1C7.] 


m  RE   WESTFIELD.       HOUSE,    1879.  333 


In  ee  Recount  of  Votes  in  Westfield. 

Messrs.  Andrew  J.  Jennings  of  Fall  River,  Chairman;  Charles  P. 
Aldrich  of  Deerflelcl,  James  W.  Bennett  of  Lowell,  Charles  II. 
LiTCHMAN  of  Marblehead,  and  Andrew  Bullock  of  New  Bedford, 
Special  Committee.     Report  by  all  the  committee. 

House  Document,  No.  232.     March  7,  1879. 

Unauthorized  Recount  of  Votes.  —  Where,  after  the  election,  the  ballots  were  placed 
in  a  bag,  and  delivered  to  the  town  clerk,  who  placed  them  in  the  town  safe,  to  which 
several  persons  had  keys,  and  the  ballots  remained  there,  more  or  less  exposed  to 
tampering,  until  February  13,  when  one  of  the  selectmen,  needing  the  voting-Hst, 
which  had  been  illegally  sealed  up  with  the  ballots,  opened  the  bag  and  withdrew 
the  list;  and  on  the  evening  of  that  day,  the  town  clerk,  with  the  assistance  of  others 
invited  by  him,  took  the  bag  from  the  safe,  which  he  found  unlocked,  tore  it  open, 
and  recounted  the  votes  for  representatives,  finding  a  large  discrepancy  between  the 
result  and  that  declared  at  the  election,  and  then  verifying  his  recount  by  another 
count,  and  neglected  to  destroy  the  ballots  as  required  by  law, —it  was  held  that 
such  recount  was  unauthorized  and  illegal,  an  outrage  upon  the  rights  of  the  returned 
member,  and  entitled  to  no  weight ;  and  the  persons  engaged  in  it  were  censured  by 
resolution  of  the  house. 

The  Committee  appointed  imder  the  house  order  of  February  26 
last  "  to  investigate  and  report  to  the  house  the  facts  in  regard  to 
the  alleged  unauthorized  recount  of  ballots  for  representatives  cast 
at  the  last  election  in  Westfleld,  in  the  tenth  Hampden  district,  and 
the  alleged  tampering  with  said  ballots,  and  all  matters  relating 
thereto,  with  authority  to  sit  at  Westfleld  or  Boston  as  they  may 
deem  proper,  to  send  for  persons  and  papers,  and  examine  wit- 
nesses under  oath,"  having  fully  heard  and  examined  all  available 
testimony'  and  evidence  relating  to  the  subject-matter,  submit  the 
following  report. 

Seventeen  witnesses,  including  most  of  the  town  officers,  were 
examined  under  oath  by  the  committee  silting  at  Westfield. 

The  committee  find  that  at  said  election  the  ballots  were  succes- 
sively counted  by  two  counters,  who  handed  the  result  of  their 
count  to  the  chairman  of  the  selectmen.  After  said  count  had  been 
duly  announced,  the  ballots  so  counted  were  placed  in  a  large  paper 
envelope  or  bag.  The  opening  of  the  bag  was  then  closed  by 
gluten,  and  subsequently  the  top  turned  down  and  firmly  secured 
by  three  or  four  seals  made  by  sealing-wax  placed  thereon. 

At  the  time  the  ballots  were  placed  in  the  bag,  there  were  put 
into  the  bag  several  loose  pasters,  which  had  become  detached  from 


334  MASSACHUSETTS   ELECTION    CASES 1853-1883. 

their  ballots  in  the  process  of  counting.  The  number  of  such 
stickers  is  uncertain.  Both  counters  thought  there  were  not  less 
than  six  :  and  one  counter  swore  positively  to  two,  which  he  re- 
nicrabered  to  have  been  put  into  the  bag  by  himself.  There  were 
also  a  laro-e  number  of  ballots  to  which  stickers  were  attached 
simply  by  pins.  The  bag,  with  a  written  indorsement  thereon 
sbowino-  the  nature  of  its  contents,  was  then  delivered  by  Lucius 
F.  Thayer,  the  chairman  of  the  selectmen,  to  the  town  clerk,  Elmer 
W,  Dickerman,  with  the  remark,  that  "  they  belonged  to  him." 
At  this  time  the  bag  was  whole,  and  the  seals  unbroken.  The  bag 
was  then  placed  in  the  town  safe,  in  the  selectmen's  office,  and, 
with  such  difficulty,  as  it  appeared,  that  the  bag  was  slightly  torn  or 
broken  in  the  operation.  The  combination  of  this  safe  was  or  had 
been  known  to  at  least  nine  or  ten  persons,  several  of  whom  had 
at  that  time  no  right  to  enter  the  safe  ;  although,  at  the  time  they 
learned  the  combination,  they  had  such  right.  Several  persons, 
officers  of  the  town,  bad  keys  to  the  entrance-door  of  the  office. 
There  was  no  evidence  that  the  safe  was  left  open,  except  when 
the  selectmen  or  proper  officers  wei'e  in  the  room  or  about  the 
building,  save  in  the  instance  given  below.  After  the  bag  was 
placed  in  the  safe,  it  was  locked,  and  all  parties  left  the  office. 
One  witness  testified,  that,  after  the  bag  was  placed  in  the  safe, 
the  seals  were  unbroken,  though  some  of  them  m'ght  have  been 
cracked.  On  the  following  day  the  town  clerk  went  to  the  office, 
took  the  bag  out  of  the  safe,  and  found  two  holes  in  the  bag,  which 
he  pasted  over  with  paper,  secured  by  gluten.  There  was  no  evi- 
dence that  the  bag  was  again  taken  from  the  safe  until  the  13th 
da}'  of  February  last,  though  it  was  frequently  seen  in  the  safe 
by  persons  who  came  into  the  office.  About  a  week  after  the 
election,  the  town  treasurer,  having  occasion  to  go  to  the  safe,  saw 
the  bag,  and  observed  that  all  the  seals  were  completely  broken, 
so  that  the  top  of  the  bag,  which  had  been  fastened  down  by  them, 
stood  upright ;  but  the  gluten  fastening  appeared  to  be  all  right, 
though  he  did  not  examine  it. 

On  the  afternoon  of  February  13  last.  Selectman  Thayer,  needing 
the  check-list  which  had  been  used  at  said  election,  and  which  had 
been  illegally  sealed  up  in  the  bag  containing  the  ballots,  went  to  the 
bag,  cut  a  sUt  in  the  top,  and  drew  the  check-list  from  the  bag.  Mr. 
Dickerman,  coming  in  soon  after,  and  being  informed  what  had  been 
done,  took  the  bag  out  of  the  safe,  and  patched  up  the  hole  with  a 
paper  secured  by  gluten  ;  after  which  the  bag  was  replaced  in  the 
safe.  Mr.  Dickerman  then  told  Mr.  Thayer  that  there  was  to  be  a 
recount  of  the  ballots  that  night ;  asked  if  he  could  have  the  use  of 


IN   RE    WESTFIELD.       HOUSE,    1879.  335 

the  office,  and  if  Mr.  Thayer  would  be  present.  Mr.  Thayer  said 
he  could  have  the  office,  and  consented  to  be  present.  ]Mr.  Dicker- 
man  subsequently  notified  Mr.  F.  S.  P>ggleston  and  Mr.  W.  H. 
Foote  of  the  recount,  and  they  also  consented  to  be  present. 

Mr.  Foote  was  the  first  to  reach  the  office,  which  was  open,  and 
was  soon  followed  by  Mr.  Dickerman,  who  at  once  proceeded  to 
open  the  safe-door,  which  was  closed.  On  attempting  to  unlock 
the  safe,  he  found  it  already  unlocked,  and  expressed  great  sur- 
prise, but  opened  the  doors,  took  out  the  bag  tore  ott'  its  top,  and 
placed  the  ballots  on  the  table.  The  recount  then  began,  the  other 
two  parties  arriving  during  the  recount.  Mr.  Thayer  was  obliged 
to  leave  after  the  vote  for  one  candidate  was  ascertained,  and  took 
no  further  part  in  the  matter.  The  remaining  three  finished  the 
count,  and,  after  making  memoranda  of  the  result,  went  to  the 
town  clerk's  office  to  compare  the  figures  with  those  of  the  official 
count.  Finding  a  large  discrepancy,  they  returned  to  the  select- 
men's office  to  verify  their  count  b}'  a  second  count.  Since  their 
departure  the  janitor  of  the  building  had  been  in  the  office,  but 
testified  that  he  had  not  touched  the  bag  or  ballots,  which  were 
then  on  the  table  or  floor.  Their  second  count  was  the  same  as 
the  first.  Neither  of  the  parties  saw  or  found  anj^  loose  stickers 
in  the  bag,  on  the  floor  or  table,  or  among  the  ballots,  though 
special  mention  was  made  of  the  same,  and  a  search  made  there- 
for. After  the  second  count,  Mr.  Foote  said  to  Mr.  Dickerman. 
"  Burn  up  those  ballots  :  the  whole  thing  ought  to  be  burned  up." 
As  Mr.  Dickerman  did  not  seem  disposed  to  do  this,  Mr.  Foote 
look  out  a  handful  of  the  ballots  and  put  them  into  the  stove,  where 
they  were  burned.  The  bag,  with  the  rest  of  the  ballots  replaced 
in  it,  was  left  in  a  corner  of  the  office,  where  it  remained  for  some 
da3-s.  The  parties  then  left  the  office,  with  the  understanding  that 
the  whole  matter  was  to  be  kept  secret :  which  understanding  was 
not  carried  out;  for  on  February  15  the  result  of  the  recount  was 
published,  the  figures  being  obtained  from  Mr.  Dickerman,  as  the 
committee  believe  from  the  evidence  given,  although  he  swore 
positively  that  he  had  not,  directly  or  indirectl}-,  furnished  such 
information. 

The  ballots  were  never  destroyed  by  the  town  clerk,  except  as 
above  stated  ;  although,  on  the  morning  of  February  14,  his  atten- 
tion was  particularly  called  to  chap.  188  of  Acts  of  1876,*  and  he 
was  told  that  the  ballots  must  be  destroyed ;  but  on  that  day  he 
made  the  following  entry  on  the  town  record,  p.  503  :  — 

•  Now  Pub.  Stats.,  chap.  7,  sect.  34. 


336  MASSACHUSETTS    ELECTION   CASES — 1853-1885. 

Westfield,  Feb  14,  1879. 

The  votes  cast  at  the  foregoing  election  —  viz.,  Nov.  5,  1878  —  have 
been  destroyed. 

Attest:  E.  W.  DICKERMAN,  Town  Clerk. 

Such  were  the  principal  facts  established  by  the  evidence  before 
the  committee.  While  there  was  no  direct  evidence  of  any  tam- 
pering with  the  ballots  themselves  prior  to  the  recount,  the  com- 
mittee are  not  willing  to  sa^-  that  they  are  full}'  satisfied  that  there 
was  no  such  tampering.  It  was  possible,  and  perhaps  eas}-  to  so 
tamper  with  the  ballots.  Numerous  persons  had  access  to  both  office 
and  safe  ;  and  the  fact,  that,  not  more  than  a  week  after  the  election, 
all  the  waxen  seals  were  broken,  and  the  additional  fact,  that,  at  the 
time  of  the  recount,  not  a  single  loose  ticket  could  be  found,  — 
unexplained  as  the}'  were  by  the  town  clerk,  who  had  charge  of 
the  bag,  —  were  well  calculated  to  excite  suspicion. 

It  is  but  fair  to  sa}',  however,  that  nearly  every  person  who  had 
the  key  to  the  selectmen's  oflftce,  or  knew  the  safe  combination,  was 
examined,  and  swore  positively  that  he  had  never  seen  or  touched 
the  ballots  previous  to  the  recount,  and  had  no  reason  to  believe 
they  had  been  tampered  with.  The  instigator  and  mover  of  the 
recount  was  the  town  clerk,  Elmer  W.  Dickerman,  a  political  oppo- 
nent of  the  sitting  member,  and  the  one  who  drew  the  petition 
which  was  presented  to  the  house  asking  for  a  recount  of  said 
ballots.  He  failed  to  appear  at  the  hearing  assigned  by  the  com- 
mittee, or  at  any  time  thereafter,  although  opportunity  was  given 
to  do  so,  and  for  reasons  which  were  unsatisfactory  to  the  com- 
mittee. It  was  in  evidence  that  he  spoke  of  making  a  recount  early 
in  February,  soon  after  the  house  committee  on  elections  had 
reported  leave  to  withdraw  on  the  petition  forwarded  by  him.  He 
was  then  told  that  he  had  no  right  to  recount  the  ballots,  and  was 
asked  if  the  law  did  not  require  him  to  destroy  them  unexamined  ; 
and  he  replied  that  he  believed  so. 

It  appeared,  that,  when  he  invited  some  of  the  parties  to  be 
present  at  the  recount,  they  asked  him  if  he  had  a  right  to  do  it ; 
and  he  replied  that  he  had ;  that  he  had  looked  up  the  law,  and 
that  it  did  not  apply  in  this  case.  His  refusal  to  destroy  the 
ballots  after  Iiis  attention  had  been  specially  called  to  that  require- 
ment of  the  law  on  February  14,  and  his  entry  in  the  town  record 
on  the  same  day  that  they  had  been  destroyed,  although  nearly  all 
of  them  were  at  that  very  time  standing  uninjured  in  the  bag  on 
the  floor  of  the  selectmen's  office,  need  no  comment.  His  evidence 
before  the  committee  in  regard  to  the  whole  matter  was  far  from 


IN   RE   WESTFIELD.       HOUSE,    1879.  337 

satisfactory,  being  marked  by  equivocation,  and  at  times  by  a  for- 
getfulness  strongly  indicative  of  an  attempt  to  conceal  the  truth, 
and  once,  as  the  committee  believe,  by  absolute  falsehood,  in  deny- 
ing that  he  furnished  the  figures  of  the  recount  to  the  reporter  who 
published  them. 

In  view  of  all  the  facts  in  the  case,  the  committee  find  that  the 
said  recount  was  unauthorized  and  illegal,  and  an  outrage  upon  the 
rights  of  a  member  of  this  house  ;  and  that  it  is  not  entitled  to  any 
weight,  legal  or  moral,  as  affecting  his  claim  to  have  been  duly 
elected.  If  any  person,  having  been  legally  declared  elected  to 
any  office,  is  to  be  liable  to  have  his  title  to  that  office  impugned 
at  any  time  by  similar  proceedings  of  unauthorized  persons,  then 
we  had  better  abolish  at  once  all  the  legal  safeguards  heretofore 
provided.  In  consideration  of  the  fact  that  the  town  clerk  knew 
and  claimed  that  there  was  no  penalty  named  in  chap.  188  of  Acts 
of  1876,  the  committee  suggest  that  it  may  be  advisable  to  amend 
said  chapter  by  providing  a  penalty  ;  and,  in  conclusion,  the  com- 
mittee recommend  the  passage  of  the  following  resolution  :  — 

Besolved,  That  the  house  hereby  censures  all  parties  concerned, 
and  more  especially  Elmer  W.  Dickerman,  for  their  action  in 
making  an  unauthorized  and  illegal  recount  of  the  votes  cast  for 
representatives  in  the  town  of  Westfield,  in  the  tenth  Hampden 
district,  at  the  last  election. 

[The  report  of  the  committee  was  accepted,  and  the  resolution 
adopted.     H.  J.,  1879,  p.  385.] 


338  MASSACHUSETTS   ELECTION   CASES 1853-1885. 


HOUSE  — COMMMITTEE    ON    ELECTIONS.    1880. 

Messrs.  John  M.  Cochran  of  Southbridge,  Chairman;  Merritt  Van 
Deusen  of  Westfleld,  Robert  L.  Spear  of  Somerville,  Charles  O. 
Parmenter  of  Pelham,  Marcos  M.  Loud  of  Abington,  Erastus  Nick- 
ERSON  of  Chatham,  and  William  H.  Gale  of  Warwick. 


Beriah  T.  Hillman  v.   Stephen  Flanders. 

House  Document,  No.  46.     February  3,  1880.     Report  by  J.  M.  Cochran, 

Chairman. 

Recount  of  Votes  refused.  The  mere  fact  that  a  town  clerk  after  making  out  his 
record  of  the  votes,  writing  out  the  numbers  and  the  figures  after  them,  afterwards 
thought  one  figure  was  indistinct  and  erased  it  and  wrote  the  figure  again  over  the 
erasure,  —  is  not  such  an  error  or  change  in  the  return  as  will  justify  a  recount  of 
the  votes  by  the  house  of  representatives. 

Recount  of  Votes  granted.  Where  the  ballots  in  one  town  were  sorted  into  four 
different  bundles,  and  each  bundle  counted  by  a  different  person,  no  one  person 
verifying  the  count,  — the  votes  of  that  town  will  be  recounted  by  the  house  of 
representatives. 

Qualification  of  Voters.  Assessment  and  Payment  of  Tax.  Persons  who  were 
assessed  and  paid  the  taxes  necessary  to  qualify  them  as  voters  between  October  1 
and  November  1  preceding  the  election,  and  were  then  registered  as  voters,  were 
illegally  assessed  and  were  not  qualified  to  vote  at  such  election. 

Notice  of  Meeting.  Irregularity  in  will  not  avoid  Election.  Where  the  notice  of 
the  meeting  for  the  election  was  irregularly  signed  and  posted,  but  the  meeting  was 
fairly  conducted  and  no  voter  deprived  of  any  right,  or  stayed  away  from  the  polls 
by  reason  of  the  informality,  it  was  held  that  such  irregularity  would  not  affect  the 
election. 

Failure  uf  Town  Clerks  to  meet  to  ascertain  Remit.  Where  the  clerks  of  the  four 
towns,  composing  the  district,  did  not  meet  to  compare  records  and  ascertain  the 
result,  but,  owing  to  a  storm,  one  town  clerk  failed  to  appear,  so  that  the  vote  of 
that  town  was  not  counted  or  canvassed  in  preparing  the  certificate  of  election,  — it 
was  held  that  the  certificate  issued  was  void,  and  the  result  of  the  election  was  ascer- 
tained by  canvassing  the  votes  cast  in  the  district. 

George  A.  King  for  petitioner. 

HosEA  M.  Knowlton  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  peti- 
tion of  Beriah  T.  Hillman  for  an  inquiry  into  the  conduct  of 
the  election  in  District  No.  1,  in  Dukes  County,  whereby  a  certifi- 
cate was  issued  to  Stephen  Flanders,  as  representative  from  said 
district,  after  having  two  hearings  in  their   room   at  the   state 


HILLMAN   V.    FLANDERS.       HOUSE,    1880.  339 

house,  and  being  unable  to  ascertain  the  facts  in  the  case,  pro- 
ceeded to  Vineyard  Haven,  in  the  town  of  Tisbury,  in  said 
county,  as  authorized,  where  they  heard  the  evidence  presented 
and  the  arguments  of  counsel  for  both  parties. 

The  petitioner  claimed  that  Flanders  was  not  legally  elected, 
and  his  certificate  void,  for  the  following:  reasons  :  — 

First,  that,  by  reason  of  the  storm  that  prevailed  at  the  time 
of  the  election  and  the  roughness  of  the  water,  the  town  clerk  of 
Gosnold  was  unable  to,  and  did  not,  attend  the  mcetino:  of  the 
town  clerks  held  at  noou  of  the  day  following  the  election  as  pro- 
vided by  law ;  and  that  the  vote  in  said  town  of  Gosnold  was  fif- 
teen for  the  petitioner  and  two  for  Flanders,  and  should  now  be 
counted. 

Second,  that  there  'was  no  legal  election  in  the  town  of  G-ay 
Head  :  first,  in  that  there  was  not  a  legal  warrant  calling  the 
meeting  posted  in  said  town ;  second,  in  that  no  voter  in  said 
town  had  been  legally  assessed  and  paid  a  state  and  county  tax 
within  two  years. 

Third,  in  that  twenty-five,  or  more,  persons  were  illegally 
assessed  and  voted  in  the  town  of  Tisbury,  and  all  voted  for  the 
sitting  member. 

Fourth,  in  that  one  I.  W.  Silovet,  in  the  town  of  Edgartown, 
voted  his  tax-bill  by  mistake,  intending  to  have  voted  for  the  peti- 
tioner ;  and  that,  after  he  discovered  his  mistake,  he  returned  to 
the  polls  and  offered  to  vote  for  the  petitioner,  and  that  his  vote 
was  wrongfully  refused  by  the  selectmen,  and  should  now  be 
counted  for  the  petitioner. 

The  petitioner  prayed  for  a  recount  of  the  votes  in  the  town  of 
Tisbury,  on  account  of  informality  in  that  method  of  counting 
the  same  ;  and  in  the  town  of  Chilmark,  on  account  of  an  alleged 
change  in  the  books  of  the  town  clerk  of  that  town  ;  and  finally 
prayed  that  the  petitioner  might  be  declared  elected,  or  a  new 
election  ordered,  by  reason  of  the  informalities  and  errors  afore- 
said. 

At  the  hearing,  it  was  agreed  that  the  town  clerk  of  Gosnold 
failed  to  attend  at  the  meeting  of  the  town  clerks  of  the  district, 
as  provided  by  law,  and  that  the  vote  of  Gosnold  was  not  counted 
or  canvassed  in  preparing  the  certificate  to  the  sitting  members ; 
and  that  the  vote  of  Gosnold  was,  as  set  forth  in  the  petition, 
viz.,  fifteen  for  Beriah  T.  Hillman  and  two  for  Stephen  Flanders. 

It  was  further  agreed  that  the  vote  as  canvassed  by  the  town 
clerks  was  as  follows  :  — 


340 


MASSACHUSETTS    ELECTION   CASES 1853-1885. 


EdgartowD, 
Tisbury, 
Chilmark, 
Gay  Head, 


That  Gosuold  should  have  been  counted 
as  follows :  — 


Stephen  Flanders. 


101 

258 

65 

23 


447 
2 


449 


Berlah  T.  HiUman. 


307 

49 

37 

1 


394 
15 


409 


It  was  further  agreed  that  I.  W.  Silovet  voted  his  tax-bill  in 
Edgartown,  and  that  he  afterwards  offered  to  vote  for  Beriah  T. 
Hillman,  and  that  the  selectmen  refused  to  receive  the  same,  it 
appearing  from  the  check-list  that  he  had  already  voted  once. 

It  was  proved,  and  admitted  upon  the  part  of  the  sitting  mem- 
ber, that  in  the  town  of  Tisbury  fourteen  •  persons  were  assessed 
and  paid  their  taxes  between  the  first  day  of  October  and  ten 
o'clock  in  the  afternoon  of  Nov.  1,  1879,  and  were  duly  regis- 
tered and  voted  ;  and  the  sitting  member  waived  the  proof  that 
they  voted  for  him,  agreeing  for  the  purposes  of  the  hearing, 
that  none  of  them  voted  for  the  petitioner. 

The  greater  part  of  the  evidence  heard,  therefore,  was  as  to 
the  conduct  of  the  election  in  Gay  Head. 

It  was  agreed  that  the  town  of  Gay  Head  had  been  an  incorpo- 
rated town  for  about  ten  years  ;  that  the  town  officers  were  all  of 
them  Indians,  or  of  Indian  descent,  and  that  the  town  had  no  by- 
laws regulating  the  calling  of  meetings. 

Charles  H.  Mingo,  an  Indian,  testified  that  he  was  one  of  the 
selectmen  and  assessors  of  Gay  Head ;  that  he  prepared  the 
notice  of  the  meeting,  which  was  as  follows  : 


Notice. 

To  notify  the  inhabitants  qualified  to  vote  in  town  affairs  to  meet  at 
the  schoolhouse  on  the  fourth  day  of  November  next  at  ten  o'clock  a.m., 
to  vote  for  government  officers.  Polls  will  be  open  from  ten  o'clock 
A.M.  until  two  P.M. 

Oct.  2.5,  1879.    Gay  Head. 

CHAS.  H.  MINGO. 
THOMAS  JEFFERS. 

That  he  took  the  original  to  Thomas  Jeffers,  another  one  of  the 
selectmen,   and  had  him  sign  it,   and  that  he  posted   it  on  the 


HILLMAN   V.    FLANDERS.       HOUSE,    1880.  341 

cliuvch  in  Ga}'  Head  Oct.  25,  1879;  that  that  same  clay  he  was 
iuformed  by  some  person  that  it  was  necessary  to  have  the  notices 
posted  ;  that  he  thereupon  copied  the  above  notice,  with  the  ex- 
ception of  Jeffers'  name,  and  posted  the  copy  upon  the  school- 
house  in  said  town  on  the  same  day  he  posted  the  original ;  that 
this  notice  was  removed  from  the  sehoolhouse  by  the  action  of 
the  rain  and  wind,  and  that  he  prepared  another  copy,  without  the 
name  of  Jeffers,  and  posted  in  the  place  of  the  one  removed  ; 
that  at  the  election,  which  was  held  in  the  schoolhouse,  the  second 
copy,  prepared  and  posted  as  aforesaid,  was  read ;  that  he  per- 
sonalh'  took  down  the  one  posted  upon  the  church,  and  had  it 
present  at  the  hearing,  and  that  that  was  the  original,  signed  by 
him  and  Jeffers.  The  church  is  about  one-fourth  mile  from  the 
schoolhouse,  and  they  are  the  only  two  public  buildings  in  town ; 
that  there  were  thirty-three  voters  on  the  list,  and  that  twenty- 
four  voted.  He  further  testified  that  the  total  tax  assessed 
for  state,  county,  city  and  town  purposes,  including  highways, 
for  the  year  1878,  was  $350.  That  the  taxes  assessed  for  1879 
were,  — 

State  tax, $5  00 

County  tax, 43  95 

Town  tax,       .        .        .        •        .        .        .        .      400  00 

Total, 1448  95 

Thomas  Jeffers  testified  that  he  was  a  selectman  and  assessor  in 
said  town  ;  that  Mingo  brought  in  the  notice  testified  to,  and  that 
he  signed  the  same  ;  and  that  he  afterwards  saw  it  posted  —  he 
thought  upon  the  schoolhouse,  but  it  might  have  been  on  the 
church  ;  that  he  signed  the  same  and  saw  it  posted  before  election  ; 
that  there  were  thirty-three  voters,  and  that  twenty-four  voted. 
Of  those  who  did  not  vote  he  knew  that  George  J.  Blaine  didn't 
vote.  Abram  Radman  was  at  the  meeting,  but  didn't  vote.  Louis 
Cook  didn't  attend.  John  Foster  was  fishing  at  Noman's  Land ; 
he  had  talked  with  him  about  the  election,  and  he  said  he 
shouldn't  come  in  to  it.  Thomas  Manning  was  sick  in  bed. 
Samuel  Haskings  was  in  New  York;  went  there  about  Oct.  1. 
A.  H.  Cooper  was  not  there,  but  knew  of  the  election.  H.  W. 
Pease,  the  light-keeper,  didn't  attend,  but  knew  of  meeting ;  and 
that  Valentine  Womblay  was  at  sea.  He  never  heard  of  any 
complaints  in  town  as  to  informality  of  notice. 

Israel  D.  Rose  testified  that  he  was  town  clerk  and  selectman  ; 
that  he  recorded  notice  originally  with  the  name  of  but  one  select- 
man, but  afterwards  added  Jeffers'  name,  being  informed  by  the 


342  MASSACHUSETTS    ELECTION   CASES  —  1853-1885. 

selectmen  that  both  names  were  upon  the  original,  posted  at  the 
church. 

Aaron  Cooper  testified  that  he  was  collector  of  Gay  Head  ;  that 
he  saw  the  notice  on  the  church  three  or  four  days  before  election, 
and  that  it  was  signed  bj'  both  Mingo  and  Jeffers. 

William  A.  Vanderhoof  testified  that  he  talked  with  Georse  J. 
Blaine  about  the  election  before  November  4,  but  Blaine  neglected 
to  vote. 

A.  H.  Cooper  testified  that  he  knew  of  the  election,  but  didn't 
vote.     The  informality  of  warrant  was  not  the  cause. 

Captain  Benjamin  Clough  testified  that  he  was  the  defeated  candi- 
date for  count}'  commissioner  at  this  election  ;  that  he  talked  with 
Mingo  about  the  notice,  and  Mingo  told  him  that  Jeffers  signed 
the  same  November  5,  and  after  the  election,  and  at  the  request  of 
parties  from  out  of  town,  Mingo  and  Jeffers,  being  recalled,  both 
denied  this  fact,  and  testified  that  the  notice  was  signed  and  posted 
before  the  election. 

It  was  proved  that  the  State  tax  for  1878  was  $10.00,  and  paid 
to  the  State  Treasurer  Dec.  26,  1878.  That  the  State  tax  for 
1879  was  $5.00,  and  was  paid  Jan.  3,  1880. 

In  the  matter  of  the  town  clerk's  records  in  Chilmark,  J.  W. 
Tilton  testified  that  he  was  town  clerk ;  that  the  declaration  of  the 
vote  made  in  open  town  meeting  was,  for  Stephen  Flanders,  sixt}-- 
five  votes  ;  for  Beriah  T.  Hillman,  thirty-seven  votes  ;  and  that  he 
made  a  true  record  of  said  declaration,  writing  out  the  numbers  and 
following  the  same  with  figures  ;  that  he  afterwards  noticed  that  the 
figures  following  tlie  word  sixt^'-five  were  liable  of  being  read  "  55," 
and  that  he  erased  the  first  figure,  and  wrote  the  figure  G,  over  the 
same.  This  was  all  the  error  or  change  proved  upon  which  to 
base  the  petition  for  a  recount  in  that  town,  and  your  committee 
followed  the  long  established  rule  that  the  official  returns  are 
jmrna  facie  correct,  and  that  the  petitioner  must  show  fraud, 
irregularity,  or  a  reasonable  presumption  of  an  error  in  the  count 
(see  Barr  et  al,  Pets.,  ante,  p.  254  ;  3forse  v.  Lonergan  ante,  p. 
288  ;  where  the  house  refused  to  recount  the  votes). 

In  the  town  of  Tisbury  it  appeared  from  the  evidence  that  the 
ballots  were  divided  into  four  diff"erent  bundles,  and  that  each 
bundle  was  counted  by  a  different  person,  and  that  no  one  man 
verified  the  count.  Your  committee,  considering  this  a  somewhat 
careless  way  of  counting,  proceeded  to  count  the  votes  in  said 
town,  and  found  that  twe  whole  number  of  ballots  cast  was  307, 
that 


HILLMAN   V.    FLANDERS.       HOUSE,    1880.  343 

Stephen  Flanders  had 

Beriah  T.  Hillman  had 

Blank 


The  vote,  as  declared,  showed  that  Flanders  had  258  votes,  and 
.he  recount  showed  that  there  was  an  error  of  three  to  be  deducted 
from  the  vote  of  Stephen  Flanders. 

Your  committee  was  satisfied,  from  the  evidence,  that  the  meetins 
in  Gay  Head  was  openly  and  fairly  conducted  ;  that  no  voter  was 
deprived  of  any  rights  by  reason  of  the  informalities  in  the  notice 
of  the  meeting ;  and  that  no  voter  stayed  away  from  the  meeting 
by  reason  of  the  same.  That  although  the  notice  was  irregular, 
that  it  was  the  act  of  the  "  plain  people"  of  that  town,  and  posted 
in  good  faith  upon  the  part  of  the  officers  of  the  town.  * 

*[NoTE  BY  THE  EDITORS.  Iiiformalittj  in  Notice  of  Meeting  for  general  Elec- 
tions, not  affecting  the  Result,  will  not  invalidate  the  Election.  The  informalities  in 
the  notice  of  the  meeting  in  the  above  case  were  also  before  the  supreme  judicial 
court,  upon  an  Information  in  the  nature  of  quo  warranto  to  test  the  validity  of  the 
election  of  county  commissioner,  made  up  at  the  same  time ;  and  the  court,  agreeing 
with  the  committee,  held,  that  such  informalities,  not  preventing  a  full,  free  and  fair 
vote,  and  not  affecting  the  result,  should  not  invalidate  the  election  :  "  The  pro- 
visions of  the  statutes  which  have  been  disregarded  in  this  case  we  think  are  not  of 
the  essence  of  the  thing  required  to  be  done,  by  complying  with  which  jurisdiction 
or  authority  to  hold'  an  election  was  obtained,  but  they  regulate  the  form  and  manner 
in  which  the  meeting  for  an  election,  required  by  law  then  and  there  to  be  held, 
should  be  called."  Commonwealth  v.  Smith,  132  Mass.  289,  296,  published  in  the 
supplement  hereto.  It  must  always  be  presumed,  until  otherwise  proved,  that  the 
notice  of  the  meeting  was  legal  and  sufBcient.     Gilmore  v.  Ilolt,  4  Pick.  253. 

Other  authorities  go  even  farther,  and  hold  that  the  entire  absence  of  the  formal 
notice  provided  by  statute  of  an  election,  the  time  and  place  of  which  are  prescribed 
by  law,  will  not  necessarily  invalidate  the  election.  In  such  cases  the  notice  i8 
merely  additional  to  that  given  by  the  statute,  but  the  right  to  hold  the  election 
comes  from  the  statute,  and  not  from  the  ofBcial  notice.  In  New  York,  it  is  held, 
that  if  the  election  is  fairly  conducted,  and  substantially  all  the  electors  had  knowl- 
edge of  it,  although  no  formal  notice  was  given,  the  election  is  valid;  but  if  the 
omission  of  the  statutory  notice  is  fraudulent,  or  the  election  was  thereby  prejudiced, 
then  such  omissions  may  invalidate  the  election.  People  v.  Peck,  11  Wendell  (N. 
Y.),  604 ;  People  v.  Runkel,  9  Johnson  (N.  Y.),  147 ;  Marchant  v.  Langioorthy,  6  Hill 
(N.  Y.),646.  If  the  election  was  held  at  the  proper  time  and  place,  and  by  the 
proper  officers,  the  notice  has  no  bearing  on  the  merits,  and  is  merely  technical ; 
Battis  V.  Price  2  Pearson  (Penn.),  4-53.  And  so,  in  the  following  cases,  it  was  held 
that  an  election  fixed  and  required  by  statute,  which  was  otherwise  regularly  con- 
ducted, would  not  be  invalidated  by  absence  of  the  ofBcial  notice ;  Lafayette  v.  State, 
69  Ind.  218 ;  Jones  v.  Gridley,  20  Kansas,  584 ;  People  v.  narticell,  12  Mich.  .508 ; 
People  V.  Witherell,U  lb.  48;  McCraw  v.  77a/-ra?so»,  4  Coldwell  (Tenn.),  34,  39; 
Dishon  V.  Smith,  10  Iowa,  212;  State  v.  Orvis,  20  Wis.  235. 

Electors  must  hare  in  Laio  or  Fact  Knotvledge  of  Meeting  for  Election.  The  author- 
ities are  not  fully  agreed  upon  the  question  whether  publication  of  official  notice  is 
essential  to  the  validity  of  an  election  to  fill  a  vacancy  in  office,  where  the  statute 
provides  that  such  vacancy  shall  be  filled  at  the  next  general  election.  In  People  v. 
Cowles,  13  N.  Y.  350,  the  court  lield  that  an  election  to  fill  a  vacancy,  which  had 


344  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

They  were  further  satisfied  that  a  state  and  count}^  tax  had  been 
duly  assessed  within  two  years,  and  that  the  state  tax,  at  least, 

occurred  but  a  week  or  two  before  the  election,  in  the  ofBce  of  judge,  was  legally 
made  at  the  general  election,  although  no  official  notice  was  given  of  the  election, 
and  apparently  only  a  small  number  of  the  electors  participated  in  it.  The  Califor- 
nia Court  refused  to  follow  this  decision,  McKunev.  Welter,  11  Cal.  49;  People  v. 
Martin,  12  lb.  409. 

The  best  test,  supported  by  the  weight  of  authority,  seems  to  be,  not  whether  the 
electors  were  served  with  official  notice  of  the  meeting  for  the  election,  but  whether 
as  a  body  they  had  knowledge  of  it.  If  the  election  is  to  fill  a  vacancy  in  office,  under 
a  general  statute  provision  fixing  the  time  and  manner  of  filling  such  vacancy,  then 
the  electors  may  perhaps  be  bound  to  know  the  requirements  of  the  law,  but  they 
cannot  be  presumed  to  know,  in  the  absence  of  lapse  of  time  or  other  circumstances, 
the  fact  that  any  vacancy  exists.  So,  in  Ohio,  an  election  to  fill  a  vacancy  of  which 
bat  a  small  minority  of  the  electors  had  knowledge,  was  held  invalid,  the  court  say- 
ing :  "  In  deciding  this  case,  however,  we  do  not  intend  to  go  beyond  the  case  before 
us,  as  presented  by  its  own  peculiar  facts.  "We  do  not  intend  to  hold,  nor  are  we  of 
opinion,  that  the  notice  by  proclamation  as  prescribed  by  law,  is  per  se  and  in  all 
supposable  cases,  necessary  to  the  validity  of  an  election.  If  such  were  the  law,  it 
would  be  in  the  power  of  a  ministerial  officer  by  his  misfeasance  always  to  prevent 
a  legal  election.  We  have  no  doubt  that  where  an  election  is  held  in  other  respects 
as  prescribed  by  law,  and  notice  in  fact  of  the  election  is  brought  home  to  the  great 
body  of  the  electors,  though  derived  through  means  other  than  the  proclamation 
which  the  law  prescribes,  such  election  would  be  valid.  But  where,  as  in  this  case, 
there  was  no  notice,  cither  by  official  proclamation,  or  in  fact,  and  it  is  obvious  that 
the  great  body  of  the  electors  were  misled  for  want  of  the  official  proclamation,  its 
absence  becomes  such  an  irregularity  as  to  prevent  an  actual  choice  by  the  electors, 
prevents  an  actual  election  in  the  primary  sense  of  that  word,  and  renders  invalid 
any  semblance  of  an  election,  which  may  have  been  attempted  by  a  few,  and  which 
must  operate,  if  it  be  allowed  to  operate  at  all,  as  a  surprise  and  fraud  upon  the 
rights  of  the  many."  Foster  v.  Searff,  15  Ohio  St.  532,  537 ;  State  v.  Cogswell,  8  lb. 
620.  In  Kansas,  the  court  affirms  the  distinction  :  "  If  such  notice  was  given,  the 
voters  could  not  ignore  the  notice  and  refrain  from  voting;  or,  if  the  body  of  voters 
were  in  fact  to  receive  notice  in  any  other  manner,  probably  they  would  not  ignore 
it;  or  if  sufficient  facts  should  come  to  the  knowledge  of  the  body  of  the  voters  to 
put  them  upon  inquiry,  possibly  they  could  not  ignore  the  election.  This  has  been 
80  held,  where  the  election  was  held  at  the  same  time  and  place  of  some  other  election 
which  called  out  substantially  all  the  voters,  and  the  matter  was  discussed  among 
the  voters,  -ind  a  large  proportion  of  them  voted  upon  the  subject."  Wood  v.  Bartling 
16  Kansas,  109,  113;  Light  v.  State,  14  76.  489.  So,  in  Wisconsin,  the  election  of  a 
sheriff  to  fill  a  vacancy  in  the  office,  at  the  next  general  election  held  after  the  vacancy 
occurred,  as  provided  by  statute,  but  without  publication  of  the  notice  prescribed  by 
the  statute,  was  held  valid.  State  v.  Orvis  20  Wis.  235;  at  least  where  the  body  of 
electors  had  actual  notice.  State  v.  Goetze,  22  Wis.  363.  But  if  the  fact  of  the  vacancy 
was  not  generally  known,  and  the  statutory  notice  was  not  given,  so  that  the  great 
body  of  electors  who  voted  for  other  offices  at  the  election,  did  not  vote  to  fill  the 
vacancy,  such  election  was  void.  State  v.  McKinney,  25  Wis.  416.  And  see  Bolton 
V.  Good,  12  Vroom  (N.  J  ),  296. 

Notice  of  Special  Election  is  essential.    Where  the  election  is  special ;  that  is,  called 
at  a  special  time  by  precept  of  the  senate  or  house  of  representatives  to  fill  a  vacancy 

in  that  Ijody,  or  by  other  authority  conferred  by  law,  so  that  it  is  necessary  to 
appoint  a  time  for  the  election,  notice  of  such  election  is  essential  to  its  validity.  In 
such  case,  the  right  to  hold  the  election  is  not  derived  directly  from  a  statute  pre- 
scribing the  time,  but  comes  from  the  precept,  warrant,  or  other  official  act,  which 
appoints  and  must  state  the  time.  Such  election  depends  for  its  legality  upon  such 
official  act,  and  not  directly  upon  the  statute.     Wood  v.  BartU7ig,  16  Kansas,  109. 


HILLMAN   V.    FLANDERS.       HOUSE,    1880.  345 

had  been  collected  and  paid.  There  were  some  discrepancies 
between  the  amounts  assessed  and  the  amounts  voted  by  the  town, 
but  not  sufficient  to  invalidate  the  state  tax.  Your  committee, 
therefore,  follow  the  law  as  laid  down  by  Mr.  Justice  Morton  in 
Strong.  Pet.,  20  Pick.  484  : 

"  What  shall  be  the  consequence  of  an  omission  by  the  selectmen 
or  town  clerk  to  perform  any  of  these  prescribed  duties,  and  upon 
whom  shall  it  fall  ?  For  a  wilful  neglect  of  duty  the  officers  would 
undoubtedly  be  liable  to  punishment.  But  shall  the  whole  town 
be  disfranchised,  by  reason  of  the  fraud  or  negligence  of  their 
officers  ;  this  would  be  punishing  the  innocent  for  the  faults  of  the 
guilt}'.  It  would  be  more  just  and  more  consonant  to  the  genius 
and  spirit  of  our  institutions,  to  inflict  severe  penalties  upon  the 
misconduct,  intentional  or  accidental,  of  the  officers,  but  to  receive 
thje  votes  whenever  they  can  be  ascertained  with  reasonable  cer- 
tainty." 

This  doctrine  we  believe  has  lately  been  adopted  and  enunciated 
by  the  supreme  court  of  the  State  of  Maine.  {^Opinion  of  Justices^ 
70  Me.  560.) 

The  town  clerks  having  failed  to  meet  as  required  by  law,  and 
the  certificate  issued  to  the  seated  member  being  void  by  reason 
of  the  neglect  of  duty  upon  the  part  of  the  town  clerk  of  Gosnold, 

The  court  in  New  Jersey  recognizes  the  distinction :  "  In  the  election  of  an  officer 
for  a  regular  term,  the  not  giving  notice  may  not  invalidate,  for  a  contrary  doctrine 
would  put  it  in  the  power  of  a  clerk,  through  ignorance,  carelessness,  or  design,  to 
set  aside  a  regular  annual  election,  the  place  and  time  of  which  are  fixed  by  law; 
but  where  the  election  is  to  fill  a  vacancy,  the  time  and  place  of  holding  which  are  to 
be  fixed  by  the  chief  executive  or  some  other  power,  the  notice  is  essential,  not  only 
as  to  the  fact  of  the  vacancy,  and  the  object  of  the  election,  but  the  time  and  place  for 
depositing  the  ballots.  In  the  former  case,  the  right  to  hold  the  election,  at  the 
time  and  place  fixed  and  between  the  hours  designated,  is  derived  from  the  statute; 
in  the  latter,  it  proceeds  not  only  from  the  law,  but  also  by  virtue  of  the  proclamation 
and  notice,  all  of  which  are  necessary  to  constitute  a  legal  election."  Morgan  v. 
Gloucester  City,  15  Vroom  (N.  J.),  137,  142.  And  so  in  Illinois,  it  was  recently  held 
that:  "Where  the  time  and  place  of  an  election  are  fixed  by  law,  an  omission  to 
give  the  proper  notice  of  the  election  will  not  vitiate  an  election  held  on  the  day 
appointed  by  law;  but  where  the  law  fixes  no  time  or  place  of  holding  the  same, 
leaving  that  to  be  determined  by  some  authority  in  the  statute,  after  the  happening 
of  some  condition  precedent,  it  is  essential  to  the  validity  of  the  election  that  it  be 
called,  and  the  time  and  place  thereof  fixed  by  the  very  agency  designated  by  law 
and  none  other."  Stephens  v.  People,  89  111.  337.  That  a  special  election  requires 
official  authority  and  notice,  see  also  Clark  v.  Board  of  Supervisors,  27  111.  305; 
Marshall  Co.  v.  Cook,  38  111.  4t;  Force  v.  Batavia,  61  111.  99;  State  v.  Young,  A: 
Iowa,  561;  Secord  v.  Foutch,  44  Mich.  89;  McPike  v.  Pen,  51  Mo.  63;  Barry  v. 
Lauck,  5  Coldwell  (Tenn.),  588.  But  even  in  such  special  election,  called  by  proper 
authority,  if  notice  of  the  time  officially  appointed  for  the  election  is  in  fact  given, 
there  is  no  authority  for  holding  that  mere  informality  in  the  mode  of  serving  the 
notice  will  necessarily  invalidate  the  election.  Such  informalities  would  probably 
have  no  more  effect  upon  a  special  election  called  and  fixed  by  proper  authority,  and 
of  which  the  electors  had  actual  notice,  than  they  would  have  upon  a  general  election 
held  under  statute  authority.    Cases  supra. 


346 


MASSACHUSETTS   ELECTIOX   CASES  —  1853-1885. 


your  committee,  following  the  precedents  in  Stimpson  x.  Breed, 
ante,  p.  257,  and  Haines  v.  Hillis,  ante,  p.  300,  proceeded  to  canvas 
the  votes  cast  in  said  district,  to  ascertain  who  was  duly  elected, 
and  find  that  the  votes  cast  were  as  follows  :  — 


For  Flanders. 

For  Hillman. 

Edfrartown 

101 

307 

Tisburv 

255 

49 

Chilmark 

65 

37 

Gay  Head 

23 

1 

Gosnold 

2 

15 

Total 

446 

409 

Making  Flanders'  majority  37.  Deducting  the  14  votes  which 
were  illegally  assessed,  and  paid  after  Oct.  1,  1879  (see  Opinions 
of  Justices,  18  Pick.  575),  Flanders  still  has  a  majorit}"  of  23. 

As  these  14  do  not  affect  the  majorit}',  the}'  do  not  affect  the 
validity  of  the  election.  Sudbury  v.  Stearns,  21  Pick.  148  ;  Trustees 
in  Blandford  v.  Gibbs,  2  Cush.  39  ;  Christ  Church  v.  Pope,  8  Gray, 
140. 

The  committee  did  not  consider  it  necessar}*  to  give  any  weight 
to  the  case  of  I.  W.  Silovet. 

The  committee,  therefore,  recommend  that  the  petitioner  have 
leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1880,  p.  144.] 


AzEL  Ames,  Jr.,    v.  Lucius  Beebe. 


Honse  Document,  No.  99. 


February  13, 1880. 
Chairman. 


Report  by  J.  M.  Cochrax, 


Recount  of  Votes  refused.  Where  the  votes  for  representative  were  counted  by  the 
town  clerk  and  one  selectman,  each  verifying  the  count  of  the  other;  and,  owing  to 
irregularities  in  the  election  in  allowing  voters  after  depositing  ballots  for  representa- 
tive in  the  box  for  ballots  for  other  ofBcers  to  return  to  the  polls  and  deposit  ballots 
for  representative  in  the  proper  ballot-box,  it  would  be  impossible  to  ascertain  the 
true  result  of  the  election  by  a  recount,  the  votes  will  not  be  recounted  by  the  house 
of  representatives. 


AMES    l\    BEEBE.       HOUSE,    1880.  347 

Irregularities  in  Conduct  of  Election.  Stiikin;?  names  from  the  voting  list,  without 
proper  inquiry,  and  rcsroring  them  to  the  list  by  one  selectman,  without  consultation 
with  the  other  selectmen,  and  without  proper  inquiry  into  the  qualifications  of  the 
persons  whose  names  are  so  restored,  are  serious  irregularities  in  the  conduct  of  the 
election ;  but,  upon  a  waiver  by  the  petitioner  of  any  right  to  the  seat,  based  upon 
the  illegality  of  the  votes  of  such  persons,  the  election  will  stand. 

Albert  PI  Pillsburt  for  petitioner. 

S.  K.  Hamilton /or  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Azel  Ames,  Jr.,  for  a  recount  of  votes  for  representative  in  the 
eleventh  Middlesex  district,  have  heard  a  large  number  of  wit- 
nesses, and  the  counsel  for  both  parties.  The  petitioner  alleged 
that  the  count  and  declaration  of  the  votes  were  erroneous  for  the 
following  reasons :  — 

1.  Because  the  votes  cast  at  said  election  were  not  counted  at 
any  one  time,  or  by  any  person  as  a  whole,  but  were  counted  b}' 
various  persons,  and  at  various  times,  during  the  day. 

2.  Because  the  checking  of  the  names  of  the  voters,  and  the 
counting  of  the  votes,  were  loosely,  carelessly,  and  irregular!}'- 
conducted  in  several  respects. 

3.  That  the  highest  vote  cast  for  any  candidate  at  said  election, 
being  the  vote  for  governor,  was  declared  to  be  eight  hundred  and 
nine,  while  the  number  of  names  checked  upon  the  voting  list  is 
eight  hundred  and  eighteen. 

4.  That  there  appeared  to  have  been  twenty-nine  more  votes  cast 
for  governor  than  for  representative  ;  and  petitioner  believed,  from 
information,  that  the  number  of  persons  who  voted  for  governor, 
and  not  for  representative,  was  less  than  that  number. 

5.  That  all  votes  for  representative  were  deposited  in  one  ballot 
box,  and  all  votes  for  other  officers  in  another  and  separate  box, 
while  but  one  check  was  used  for  both  votes  ;  that  in  some  instances 
persons  deposited  their  votes  for  representative  in  the  box  appro- 
priated to  other  officers ;  and  in  other  instances  persons  who  had 
passed  the  ballot  boxes,  returned,  and  were  allowed  to  vote  for 
representative,  although  their  names  were  already  checked  as  hav- 
ing voted. 

6.  That  the  names  of  four  persons  were  added  to  the  voting-list 
after  the  time  allowed  by  law  therefor  had  expired,  and  that  said 
four  persons  were  allowed  to  vote,  and  voted  for  Lucius  Beebe,  the 
sitting  member. 

7.  That  one  Malcom,  a  resident  of  Stoneham,  and  never  a  legal 
voter  in  Wakefield,  was  allowed  to  vote  ;  and  one  Hard}',  who  had 
removed  from  Wakefield  prior  to  said  election,  and  not  then  a  legal 
voter,  was  allowed  to  vote,  and  voted  for  said  Lucius  Beebe. 


348  MASSACHUSETTS    ELECTION   CASES  —  1853-1885. 

8.  That  twelve  other  persons,  who  could  neither  read  the  Con- 
stitution nor  write  their  own  names,  and  were  not  legal  voters,  were 
allowed  to  vote  at  said  election,  and  voted  for  said  Beebe. 

And  prayed  for  a  recount,  and  that  said  irregularities  might  be 
inquired  into,  and  that  he  might  be  awarded  the  seat  now  held  by- 
said  Lucius  Beebe. 

The  charges  made  in  the  eighth  allegation  were  waived  and  not 
pressed  at  the  hearing,  and  no  evidence  was  offered  as  to  so  much 
of  the  seventh  allegation  as  related  to  one  Hardy, 

It  was  agreed  that  there  were  818  names  checked  upon  the  list 
of  voters,  and  that  the  vote  for  all  the  candidates  for  governor  was 
809  ;  while  the  vote  for  representatives  was  declared  as  follows  :  — 

Lucius  Beebe  of  Wakefield, 392 

Azel  Ames,  Jr.,  of  Wakefield,         ......  383 

William  S.  Greenough  of  Wakefielii,      ....  2 

Joshua  Whittemore  of  Wakefield, 3 

780 

Upon  the  question  of  the  counting  of  the  ballots,  we  had  the 
following  testimony  :  — 

Charles  F.  Hartshorn  testified  that  he  was  town  clerk  of  Wake- 
field ;  that  he  and  John  S.  Eaton,  one  of  the  selectmen,  had  charge 
of  the  counting  of  the  ballots  ;  that  the  boxes  were  opened  and  the 
ballots  removed  by  Eaton  and  himself  five  times  during  the  da^-, 
and  the  ballots  taken  from  the  boxes,  counted  each  time  by  both 
parties,  each  verifying  the  count  of  the  other,  and  that  Eaton  kept 
a  record  of  each  count,  which  was  shown  ;  that  the  only  question 
of  doubt  was,  whether  the}'  had  counted  the  vote  of  one  Malcom 
which  was  challenged.  They  thought  they  didn't  count  it  in  their 
first  count.  They  found  votes  for  representative  in  boxes  for  votes 
for  state  officers,  and  one  vote  for  state  officers  in  a  representative 
box  ;  that  they  preserved  the  votes  for  representative  found  in  the 
state  box,  but  didn't  count  them.  There  were  thirteen  representa- 
tive votes  in  state  boxes.  The  check-list  and  ballots  were  duly 
sealed  and  preserved. 

John  S.  Eaton,  one  of  the  selectmen,  confirmed  Mr.  Hartshorn's 
evidence  as  to  the  method  of  counting  the  votes,  and,  in  addition, 
said  he  was  one  of  the  selectmen  who  struck  off  Malcom's  name,  as 
it  was  shown  to  them  that  he  lived  in  Stoneham ;  that  his  name 
was  erased  because  he  was  a  non-resident. 

Thomas  Winship,  testified  that  he  gave  the  selectmen  the  in- 
formation the  Saturday  previous  to  the  election,  that  Malcom  was 
a  non-resident ;  that  he  challenged  his  vote  on  the  day  of  election, 


AMES   V.    BEEBE.      HOUSE,    1880.  349 

and  that  he  was  allowed  to  vote,  and  voted  for  Beebe.  It  was 
shown  that  the  warrant  for  the  election  called  for  the  votes  for  state 
and  county  officers  upon  one  ballot,  and  for  representative  upon  a 
separate  one,  to  be  cast  into  separate  boxes. 

James  Oliver,  testified  that  he  was  chairman  of  the  board  of 
selectmen  in  Wakefield ;  that  the  check-list  was  divided  into  two 
parts  ;  that  he  had  charge  of  so  much  of  the  same  as  contained  the 
names  from  A  to  K,  and  that  Mr.  Burbank,  another  selectman,  had 
charge  of  the  rest ;  that  they  were  stationed  at  each  end  of  a  table 
upon  the  platform,  and  each  had  two  boxes — one  to  receive  the 
state  and  county  votes,  another  to  receive  the  representative  votes. 
That  each  man  was  assisted  by  a  policeman  to  guard  the  boxes  and 
raise  the  cover  when  persons  desired  to  vote.  That  voting  was 
taking  place  at  both  desks,  and  in  all  the  boxes  at  the  same  time. 
Tbat  Mr.  Burbank  had  charge  of  his  list  all  day,  except  a  time  at 
noon  when  Mr.  Oliver  had  charge  of  both  lists,  Mr.  Burbank  ffoino- 
to  get  a  lunch.  That,  in  many  cases,  parties  voting  at  the  boxes 
where  he  was  stationed,  only  voted  the  state  and  county  ticket, 
faying  they  did  not  care  to  vote  for  representative  at  that  time  ; 
and  he  checked  their  names  upon  the  list,  and  wrote  them  upon  a 
slip  of  paper  he  had  upon  his  table,  and  kept  for  that  purpose. 
That  afterward  many  of  these  returned  and  voted ;  but  when  the 
polls  were  closed  he  had  a  list  of  nineteen  who  had  voted  for  state 
and  count}'  officers,  and  not  for  representative.  That  in  one  case 
he  saw  a  man  put  in  two  ballots  ;  that  he  took  out  one  and  pushed 
the  other  in ;  that  several  parties  put  both  their  ballots  into  the 
state  box,  and  afterwards  some  of  them  returning  and  representing 
these  facts  to  him,  he  allowed  them  to  vote  for  representative  in  the 
right  box.  Could  n't  say  the  number.  Several  did  this  ;  might  be 
four  or  five.  When  the  state  boxes  were  opened,  there  were  found 
to  have  been  thirteen  votes  for  representative  put  into  the  same. 
Don't  know  who  voted  the  second  time  for  representative,  or  for 
whom  they  voted.  Polls  opened  at  9  a.m.  ;  closed  at  4.45  p.m. 
Registration  closed  at  10  p.m.  Saturday  night,  and  the  collector 
was  there  with  list  of  those  who  had  paid  taxes  ;  and  they  crossed 
off  all  who  it  appeared  had  not  paid  a  tax  for  two  j'ears.  Don't 
know  why  Malcom's  name  was  taken  off  the  list.  He  appeared 
Tuesday  and  demanded  the  right  to  vote  ;  showed  a  I'eceipted  tax 
bill  for  the  year  1879,  and  I  put  his  name  on,  and  allowed  him  to 
vote.  He  was  challenged  by  Mr.  Winship,  but  I  received  his  vote, 
as  he  said  he  was  a  voter.  Did  this  without  consulting  other  mem- 
bers of  the  board.  I  have  since  learned  that  his  house  was  just 
across  the  line  into  Stoneham.  The  name  of  Patrick  O'Keefe  was 
stricken  off  because  we  thought  he  was  dead  ;  had  seen  the  death 


350  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

of  such  a  man.  He  appeared  at  the  polls  Tuesday,  and  demanded 
the  right  to  vote,  and  showed  that  he  had  paid  his  tax  ;  and  I  put 
him  on  the  list,  and  he  voted.  Can't  say  why  we  struck  off  the 
name  William  O'Neil,  —  think  for  non-payment  of  taxes  ;  and  don't 
recall  D.  J.  O'Donovan  or  Wiggins'  cases.  I  put  them  and  Patrick 
Brown  on  after  the  polls  were  open,  because  I  found  that  they  had 
paid  their  taxes  to  the  treasurer  before  the  time  for  closing  registra- 
tion. Brown  did  not  vote;  the  others  did.  I  considered  it  a 
''  clerical  error  or  omission,"  within  the  meaning  of  the  statutes, 
where  we  struck  off  names  for  non-payment  of  taxes,  and  after- 
wards finding  that  they  had  paid  them,  put  them  on  accordingly. 
Don't  recollect  Smith's  case.  Five  or  six  in  all  were  put  on  after 
the  opening  of  polls.  Didn't  know  other  members  of  board  had 
struck  Malcom's  name  off  for  non-residence,  —  thought  it  was  for 
non-payment  of  taxes. 

B.  B.  Burbank,  one  of  the  selectmen,  testified  that  he  had  charge 
of  half  of  the  list.  He  didn't  allow  people  to  vote  at  different  times, 
and  kept  no  list  for  that  purpose  ;  should  say  ten  or  more  voted  for 
state  and  county  officers  who  didn't  vote  for  representative,  but 
didn't  keep  any  tally.  He  lunched  about  1  p.m.  and  Mr.  Oliver  had 
charge  of  both  lists  while  he  was  gone.  He  was  present  at  regis- 
tration Saturday.  Malcom's  name  struck  off  because  he  had  moved 
from  town.  He  lives  in  Stoneham.  Eaton  struck  him  off.  Didn't 
have  anything  to  do  with  adding  names  after  opening  of  polls. 
Knew  Bernard  Smith,  but  didn't  recollect  taking  his  vote. 

J.  Batchelder  testified :  saw  Smith  vote  between  twelve  and 
one  o'clock,  —  Oliver  was  in  charge  of  both  lists  at  that  time. 
Smith  put  both  tickets  into  box  for  state  officers,  and  came  down 
into  the  audience.  There  was  discussion  about  his  not  voting  in 
representative  box.  Oliver  said  he  could  come  back  and  vote  for 
representative,  and  he  went  back  and  voted  in  the  representative 
box ;  the  other  vote  not  taken  from  State  box. 

Charles  E.  Niles  saw  party  put  two  pieces  of  paper  into  State 
box.  Afterwards  Oliver  took  one  out  about  the  size  of  represen- 
tative ticket,  and  passed  to  him,  and  he  put  it  into  representative 
box.     Didn't  know  the  man,  or  how  he  voted. 

Patrick  O'Keefe,  William  O'Neil,  and  D.  J.  O'Donovan  were  all 
called,  and  testified  that  their  names  were  put  on  the  list  during 
the  day  of  election.  Had  all  paid  taxes  previous  to  Saturday  be- 
fore ;  but  upon  being  inquired  of  as  to  who  they  voted  for,  the 
counsel  for  the  sitting  member  objected  to  their  testifying  upon 
that  subject,  and  they  refused  to  state  for  whom  they  voted. 

It  appeared,  however,  by  secondary  evidence,  that  Malcom, 
O'Keefe  and  O'Neil,  had  stated  that  they  voted  for  Lucius  Beebe, 
the  seated  member. 


AMES    V.    BEEBE.       HOUSE,    1880.  351 

The  evidence  introduced  by  the  sitting  member  was  chiefly  to 
throw  discredit  upon  the  testimony  of  J.  Batchelder,  and  offers  to 
show  that  the  petitioner  was  an  unpopular  man  with  the  party 
nominating  him.  At  the  close  of  the  evidence  the  petitioner  stated 
to  the  committee,  that  if  his  claim  to  the  seat  turned  upon  the  votes 
of  those  men  who  were  put  upon  the  voting-list  after  the  opening 
of  the  polls,  he  would  waive  any  claim  or  right  to  the  seat,  as 
prayed  for ;  but  asked  the  committee  to  recount  the  votes. 

Your  committee  are  of  the  opinion,  taking  the  evidence  of 
Messrs.  Hartshorn  and  Eaton,  that  the  votes  cast  in  the  represent- 
ative boxes  were  carefully  and  correctly  counted ;  and  that,  owing 
U  the  irregularities  in  the  conduct  of  the  election,  and  the  allowing 
of  some  parties  to  vote  a  second  time,  after  having  once  voted  for 
representative  in  the  State  boxes,  so  complicated  matters  that  it 
would  be  impossible  for  them  to  ascertain  by  a  recount  the  true 
facts  in  the  case,  without  going  into  the  questions  which  the  peti- 
tioner has  waived. 

Your  committee  are  fully  of  the  opinion  that  the  use  of  two 
check-lists,  and  four  boxes  upon  one  table,  with  the  necessary  con- 
fusion of  having  two  polling  places  in  such  close  proximity ;  the 
allowing  of  parties  to  vote  and  checking  them  upon  the  regular  list, 
and  then  making  a  supplementary-  list,  distinct  from  any  official 
list ;  the  allowing  of  parties  to  vote  for  representative  a  second 
time,  they  having  once  voted  in  the  wrong  box ;  the  striking  off  of 
names  without  careful  and  proper  inquiry,  and  the  putting  of  the 
same  on  to  the  list  after  the  opening  of  the  polls  without  consultation 
with  others  members  of  the  board,  and  proper  inquiry  as  to  the 
cause  of  their  being  struck  from  the  list,  as  in  Malcom's  case,  are 
evidence  of  gross  carelessness  and  serious  irregularities  in  the  con- 
duct (if  this  election,  and  have  led  to  their  natural  consequences  — 
presumed  errors  and  confusion. 

It  is  but  just  to  sa}'  that  there  is  no  evidence  whatever  to  con- 
nect either  of  the  candidates  in  any  way  with  these  irregularities. 

The  petitioner  waived  an}'  claim  or  right  to  the  seat  in  this  house 
if  the  same  shall  turn  upon  the  right  to  vote  of  those  persons  placed 
upon  the  list  after  the  opening  of  the  polls ;  and  j-our  committee 
arc  of  the  opinion  that  the  election  does  turn  upon  such  votes. 

For  the  reasons  hereinbefore  stated,  your  committee  refused  to 
recount  the  votes  in  said  district,  and  report  that  the  petitioner 
have  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1880,  p. 
204.] 


352  MASSACHUSETTS   ELECTION   CASES 1853-1885. 


George  A.  Gushing,  Petitioner. 

House,  unprinted.    January  22,  1880.    Report  by  Robekt  L.  Spear. 
Recount  of  Votes  refused. 

[In  this  case  the  petitioner  prayed  for  a  recount  of  votes  for 
representative  in  the  fifth  Norfolk  district,  on  the  ground  that  "  he 
believes  he  was  elected  and  that  he  is  deprived  of  his  seat  by  a 
mistake  in  the  counting  of  the  ballots  cast  for  representatives." 
The  committee  reported :  They  have  heard  the  statements  of  the 
petitioner  and  the  sitting  member  from  said  district.  The  peti- 
tioner gave  as  a  reason  for  asking  a  recount  that  it  appeared  b}' 
the  returns  that  he  received  a  less  number  of  votes  than  the  com- 
bined votes  of  Messrs.  Butler  and  Adams  (democratic  candidates 
for  governor)  in  the  town  of  Quincy,  and  thought  there  must  be 
an  error  in  the  count.  Your  committee,  following  the  precedents 
of  this  house,  as  shown  in  McManus,  Petitioner,  ante^  p.  215, 
report  that  the  petitioner  have  leave  to  withdraw.  The  report  of 
the  committee  was  accepted.     H.  J.,  1880,  p.  65.] 


CLAFLIN   V.    WOOD.      HOUSE,    1881.  353 


HOUSE  — COMMITTEE    ON   ELECTIONS,  1881. 

Messrs.  StraixER  Albee  of  Cambridge,  Chairman;  Charles  O.  Pakmex- 
TER  of  Amherst,  James  A.  Crowell  of  New  Bedford,  Ira  Y.  Ken- 
dall of  Athol,  Oliver  W.  Robbins  of  Pittsfield,  Edward  P.  Butler 
of  Boston,  and  Tuiothy  A.  Murphy  of  Boston. 

Emery  Grover  v.  James  McTntosh. 

House  Document,  No.  97.    February  16, 1881.    Report  by  C.  O.  Parmenter. 

[In  this  case  the  votes  of  the  town  of  Needham  were  recounted 
by  the  committee,  on  the  ground  that,  after  having  been  duly 
counted  and  sealed  up  as  required  by  law,  they  were  deposited 
and  remained  for  two  weeks,  in  the  town  safe,  in  the  town  house,  — 
the  combination  of  the  lock  being  known  to  the  selectmen,  to  the 
chairman  of  the  school  committee,  and  to  the  janitor  of  the  build- 
ing, so  that  the  votes  might  have  been  tampered  with.  As  recount- 
ing votes  that  had  been  tampered  with  would  merely'  make  the 
fraud  successful,  the  case  is  of  no  value  as  a  precedent.  Bushrod 
Morse  appeared  for  the  sitting  member.^ 


W.  F.  Claflin  et  al.  v.  Owen  Wood. 

House  Document,  No.  150.  March  14,  1881.  Report  by  Messrs.  Albee, 
Parjienter,  Crowell,  Kendall  and  Butler;  —  Messrs.  Robbins  and 
Murphy  dissenting. 

Petition  for  seat.  Parties.  It  is  not  necessary  that  the  party  claiming  the  seat, 
or  entitled  to  it,  if  the  sitting  member  is  ousted,  should  bring  the  petition  for  the 
seat,  or  even  sign  it  with  others. 

Recount  of  Votes  granted.  Where  the  vote  of  a  town  as  first  counted  would  elect 
the  petitioner,  and  by  a  recount  four  less  votes  were  found  for  him,  so  that  the 
sitting  member  was  returned  by  a  plurality  in  the  district, —  the  committee,  con- 
sidering it  probable  that  a  mistake  was  made  in  the  count,  recounted  the  votes  of 
that  town. 

Registration  of  Voters.  Time  of.  A  person  cannot  be  registered  as  a  voter  after 
the  expiration  of  the  time  fixed  by  law,  and  if  not  qualified  then  he  has  no  legal 
right  to  vote,  so  that  where  a  person  does  not  pay  the  tax,  necessary  to  qualify  him 


354  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

as  a  voter,  until  the  day  of  election,  the  payment  is  made  too  late  to  entitle  him  to 
vote  at  such  election,  and  his  vote,  if  cast,  mu-st  be  rejected. 

Qualification  of  Voters.  Residence.  A  person  unmarried,  born  and  brought  up 
in  Franklin,  residing  there  with  his  parents  until  May,  1879,  then  going  to  work  in 
Hopkinton,  remaining  there,  except  for  the  period  from  November,  1879,  to  Feb- 
ruary, 1880,  which  period  he  spent  with  his  parents  in  Franklin,  being  taxed  in  both 
towns  in  Maj',  1880,  but  asking  for  an  abatement  in  Hopkinton  on  the  ground  that 
he  was  taxed  in  Franklin  and  wanted  to  retain  his  home  there,  because  for  part  of 
the  year  he  was  without  work  in  Hopkinton,  paying  his  tax  there  only  upon  a  tax 
warrant  against  him,  and  getting  it  abated  after  the  election,  paying  his  tax  in 
Franklin,  was  not  a  resident  of  Hopkinton  qualified  to  vote  there  in  the  election  of 
1880. 

Same.  Register  of  Voters  as  Evidence.  The  fact  that  a  person's  name  is  on  the 
register  of  voters  in  a  town  is  not  conclusive  that  such  person  is  a  qualified  voter  in 
such  town,  but  in  an  election  controversy  his  qualifications  can  be  inquired  into  by 
the  house  of  representatives,  and  if  found  unqualified,  bis  vote  will  be  rejected. 

Albert  E.  Pillsbury  and  T.  G.  Kent  appeared  for  petitioners, 
and  submitted  the  following  authorities  to  the  effect  that  the  con- 
testant himself  need  not  petition  unless  he  chooses  :  — 

To  the  effect  that  the  validity  of  an  election  may  be  inquired 
into  on  motion,  without  petition  from  any  person :  Hopkinton 
case,  Mass.  Election  Cases,  Gushing,  S.  &  J.  6  ;  Dunstable,  lb. 
15  ;  John  Williams.,  lb.  19  ;   Steere's  case,  ante.,  p.  20. 

For  a  case  in  which  the  selectmen  petitioned  for  an  investigation 
into  the  election,  Sheffield  and  Mt.  Washington,  Mass.  Election 
Cases,  Gushing,  S.  &  J.  46  ;  a  case  in  which  the  petitioner  who 
claimed  the  seat  was  himself  ineligible,  notwithstanding  which  the 
house  unseated  the  sitting  member,  Jenkins  v.  Shaio,  ante,  p.  266. 

In  which  other  persons  than  those  claiming  the  seat  have  peti- 
tioned :  Haws  v.  Darling,  ante,  p.  18  ;  Howe's  case,  ante,  p.  3  ; 
Day  v.  Taft,  ante,  p.  35  ;  Pierce  v.  Broivn,  ante,  p.  92  ;  Pease 
v.  Howell,  ante,  p.  108 ;  Wait  v.  Ingalls,  ante,  p.  133  ;  Keith 
v.  Mayliow,  ante,  p.  239  ;  McGibbons  v.  Walden,  ante,  p.  289. 

Cushing's  work  on  Law  and  Practice  of  Legislative  Assemblies, 
§  150. 

McCrary  on  Elections,  §  350. 

Patrick  A.  Collins  appeared  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition  of 
W.  F.  Claflin  and  others,  for  a  recount  of  the  votes  cast  for  repre- 
sentative in  the  thirtieth  Middlesex  district,  and  for  an  investigation 
of  certain  alleged  illegal  voting  for  representative  in  said  district, 
have  met  the  petitioners  and  the  sitting  member,  heard  their  evi- 
dence and  the  arguments  of  counsel,  and  have  considered  the 
same,  and  present  the  following  report :  —  1.  The  petitioners  repre- 
sent that  the  votes  for  representative  in  said  district  were  not 
correctly  counted,  and  that,  if  they  had  been,  the  result  would  have 


CLAFLIN   V.    WOOD.       HOUSE,    1881. 


355 


shown  that  John  A.  Woodbury  and  not  Owen  Wood,  the  sitting 
member,  was  elected  and  is  entitled  to  a  seat  in  this  house,  and 
the}'  pray  for  a  recount  of  said  votes. 

2.  They  further  represent  that,  if  said  count  is  correct,  the  said 
John  A.  Woodbury  is  still  entitled  to  a  seat,  because  they  say  bhat 
twenty-one  persons  not  entitled  to  vote  for  representative  at  saiil 
election  were  allowed  to  vote,  and  did  vote,  all  of  whom  cast  theii' 
votes  for  said  Owen  Wood  ;  and  that,  if  said  illegal  votes  had  been 
rejected,  the  said  John  A.  Woodbur^^  would  have  been  found  and 
declared  to  have  been  elected  as  representative  of  said  district ; 
and  \X\cy  pray  for  an  investigation  of  the  matter  of  said  illegal 
voting,  and  that  said  John  A.  Woodburj'  may  be  awarded  said  seat, 
if  found  entitled  thereto. 

At  the  hearing,  counsel  for  the  sitting  member  objected  to  any 
proceedings  under  the  petition,  because  it  was  not  the  petition  of 
the  part}'  claiming  the  seat,  and  because  he  had  not  even  signed  it 
jointly  with  the  other  petitioners,  and  claimed  that  the  petitioners 
had  no  right  to  contest  the  seat  of  the  respondent.  But  the  ob- 
jection was  overruled,  the  committee  being  of  the  opinion  that  on 
principle  and  by  precedent  the  petition  was  properly  brought.  See 
Gushing  on  Law  and  Practice  of  Legislative  Assemblies,  §  150, 
and  also  McCrary  on  Elections,  §  350.  This  has  been  the  practice 
in  Massachusetts  for  at  least  twenty-flve  years.  It  appeared  that, 
when  the  vote  of  Ashland  was  first  counted,  it  was  announced  that 
232  votes  had  been  cast  for  John  A.  Woodbury,  which,  if  correct, 
would  have  elected  him  by  a  plurality  of  one  vote  ;  but  on  a  sub- 
sequent recounting  it  was  found  th»at  Ashland  had  given  him  but 
228  votes,  which  was  the  number  as  finally  allowed  him  in  the  oflEi- 
cial  return  ;  and  as  it  seemed  to  the  committee  not  improbable  that 
a  mistake  might  have  been  made,  and  especially  as  the  majority  in 
the  whole  district  was  so  small,  they  decided  to  recount  the  vote  of 
the  district,  which  they  did  with  the  following  result,  viz. :  — 


la  Hopkinton  the  whole  number  of  votes  cast  was 

of  which  Owen  Wood  had    . 

and  John  A.  Woodbury  had 
In  Ashland  the  whole  number  was 

Owen  Wood  had 

John  A.  Woodbury  had 

Making  the  result  in  the  district  as  follows  :  — 


486 

387 

132 
228 


873 


360 


Whole  number, 
Owen  Wood  had  . 
John  A.  Woodbury  had 


618 
616 


1,233 


Giving  Owen  Wood  a  plurality  of  three  votes. 


356  MASSACHUSETTS   ELECTIOX   CASES  —  1853-1SS5. 

Amoug  the  ballots  in  Ashland  the  committee  found  one  sticker 
on  which  was  printed  "  For  representative,  Owen  Wood,"  which 
did  not  have  the  appearance  of  having  been  pasted  on  any  ballot 
and  fallen  oft';  and  whether  some  person  cast  it  as  a  vote  for  rep- 
resentative, or  whether  it  got  among  the  ballots  by  accident,  or  in 
what  other  way  it  cama  there,  the  committee  are  unable  to  decide. 
They  did  not  include  it  in  their  c  nmt. 

The  committee  next  proceeded  to  consider  the  second  part  of  the 
petitioner's  claim,  to  wit,  the  illegal  voting. 

On  motion  of  the  counsel  for  the  sitting  member,  the  petitioners 

were  ordered  to  file  written  specfications  of  tho  grounds  on  which 

they  claim  that  illegal  votes  were  cast,  and  they  by  their  conn  el 

filed  the  following  :  — 

HorsE  OF  Representatives. 

Ill  the  matter  of  the  petUion  of  Claflin  et  als.,  that  the  seat  of  Represen- 
tative of  the  Third  Middlesex  District  be  awarded  to  John  A.  Wood- 
bury. 

specifications  under  petition. 

The  petitioners  expect  to  prove,  under  said  petition  the  following 
facts :  — 

1.  That  one  L.  II.  Wakefield  voted  in  Hopkinton  at  the  election  in 
coniroversj',  and  voted  for  Owen  Wood  for  representative,  said  Wake- 
field not  being  a  legal  voter  at  said  eleetion,  in  that  he  had  not  paid,  in 
accordance  with  law,  any  tax  assessed  upon  him  within  two  years,  so  as 
to  entitle  him  to  registry  as  a  legal  voter. 

2.  That  one  Timothy  Connolly  voted  at  said  election  in  Hopkinton, 
and  voted  for  Owen  Wood  for  representative,  said  Connolly  not  being  a 
legal  voter  at  said  election,  in  that  he  was  not  an  inhabitant  of  said 
Hopkinton,  but  was,  and  for  more  than  six  months  previously  had  been, 
an  inhabitant  of  the  town  of  Franklin. 

3.  That  twenty-two  other  persons  voted  in  Hopkinton  at  said  election, 
and  voted  for  Owen  Wood  for  representative,  said  twenty-two  persons 
not  being'  legal  voters,  in  that  they  could  not  at  the  time  of  said  election 
read  the  Constitution  of  the  Commonwealth,  and  write  their  own  names, 
and  not  being  within  any  of  the  exceptions  prescribed  by  article  20  ot 
the  amendments  to  said  Constitution. 

A.  E.  PILLSBURY, 

For  the  Petitioners. 

Having  obtained  leave  of  the  house  the  committee  went  to  Hop- 
kinton, taking  with  them  a  stenographer,  and  spent  one  afternoon 
and  evening  taking  testimony,  and  examined  a  large  number  of 
witnesses.     The  subsequent  hearings  were  had  at  the  state  house. 

First  Specification. —  By  Statute  of  1879,  chap.  37,*  in  "all 
towns  "  registration  ceases  at  ten  o'clock  in  the  afternoon  of  the 
Saturday  next  preceding  the  day  of  any  election.  And  the  com- 
mittee are  of  the  opinion  that  a  voter  cannot  qualify  after  that  time, 

*  Pub.  Stats  ,  chap.  6,  sect.  23. 


CLAFLIN   V.    WOOD.       HOUSE,    1881.  357 

and  if  not  qualified  then  he  has  no  legal  right  to  vote  at  the  elec- 
tion. It  clearl}-  appears  on  the  testimony  that  one  Lucius  H. 
Wakefield  had  for  mauj-  years  resided  in  Hopkinton  and  voted 
there  ;  that  the  taxes  assessed  upon  him  for  the  years  1879  and 
1880  were  in  no  part  paid  till  the  forenoon  of  election  day,  November 
the  second,  —  when  in  the  town  hall,  while  the  voting  was  going  on, 
he  sought  out  the  collector  of  taxes,  and  paid  to  him  his  poll  tax 
(two  dollars),  as  he  sa^-s,  for  1880.  The  taxes  assessed  upon  him 
for  1879  were  paid  subsequently  to  a  constable  of  the  town,  and 
received  by  the  collector  of  taxes  Nov.  29,  1880.  Until  the  pa}-- 
ment  of  the  two  dollars  on  election  daj',  he  had  not  paid  any  tax 
assessed  upon  him  within  two  years  of  the  election,  and  that 
paj-ment  was  made  too  late  to  qualify  him  to  vote.  Nevertheless 
he  voted  at  said  election. 

Second  Specification,  r-  It  appears  that  Timothy  Connolly'  was, 
at  the  time  of  the  election,  twentj'-  two  years  and  seven  months 
old  ;  that  he  was  unmarried  ;  that  he  was  born  in  the  town  of 
Franklin,  where  his  parents  have  for  a  long  time  resided,  and  that 
place  had  alwa3s  been  his  home,  certainly  until  he  came  to  work 
in  Hopkinton  in  Ma}^  1879.  He  states  that  he  had  been  at  work 
in  Ho}  kinton  all  the  time  since,  except  from  November,  1879,  to 
Februar}',  1880,  which  interval  he  spent  with  his  parents  in  Frank- 
lin. He  was  taxed  in  May,  1880,  in  Hopkinton  and  in  Franklin, 
a  poll  tax.  When  called  upon  to  pay  his  taxes  in  Hopkinton,  he 
applied  to  the  assessors  to  have  them  abated,  on  the  ground  that  he 
was  taxed  in  Franklin  and  wanted  to  retain  his  home  there,  for  the 
reason  that  for  a  part  of  the  year  he  was  without  work  in  Hopkinton. 
He  was  finall}'  compelled  to  pay  his  tax  to  a  constable  on  a  tax 
warrant  against  him.  He  also,  or  some  one  for  him,  paid  his  tax 
in  .Franklin,  and  he  brought  his  receipted  tax-bill  to  the  assessors 
in  Hopkinton,  pressed  his  application  for  abatement,  and  some 
time  soon  after  the  election  it  was  abated,  as  appeared  by  the  tes- 
timon}'  of  one  of  the  assessors,  and  by  a  certificate  of  abatement 
of  taxes  in  Hopkinton  put  into  the  case.  He  voted  in  Hopkinton. 
A  majority  of  the  committee  are  of  the  opinion  that  it  was  clearly 
his  intention  to  keep  up  his  residence  in  Franklin,  and  that  he  had 
so  expressed  his  intention  ;  and,  notwithstanding  his  vote  in  Hop- 
kinton, his  intent  still  to  be  domiciled  in  Franklin  was  apparent  by 
his  pressing  his  claim  for  the  abatement  of  his  poll  tax  in  Hopkinton 
after  the  election  was  over. 

Third  Specification.  In  regard  to  the  third  specification,  the 
committee  find  that  the  following  persons  voted  in  Hopkinton  at 
said  election  who  could  not  at  the  date  of  said  election  write  their 
names,  and  neitlier  of  whom  was   within  any   of  the  exceptions 


358  MASSACHUSETTS    ELECTION   CASES  —  1853-1885 

named  in  article  20  of  the  amendments  to  the  Constitution,  viz. : 
John  O'Brien,  John  B.  Donnelly,  Michael  McLaughlin,  John  Hef- 
leran,  Patrick  Flaherty,  Thomas  O'Connell,  Martin  Curran. 

In  regard  to  all  these  persons,  witnesses  who  had  known  them 
for  a  long  time,  and  whose  business  had  required  them  to  take  of 
them  receipts  for  money  paid,  testified  that  they  said  thej^  could 
not  write,  —  that  in  giving  their  receipts  they  had  never  signed 
their  names,  always  making  their  cross  after  their  names  had  been 
written  by  others  ;  and  there  was  no  evidence  offered  that  either 
of  them  ever  had  or  could  write  his  name  or  anything  else. 

And  the  committee  find  that  all  these  nine  persons,  Lucius  H. 
Wakefield,  Timothy  Connolly,  John  O'Brien,  John  B.  Donnell}', 
Michael  McLaughlin,  John  Hefferan,  Patrick  Flaherty,  Thomas 
O'Connell  and  Martin  Curran,  voted  for  Owen  Wood  for  represen- 
tative. Wakefield  testified  that  he  so  voted.  Mr.  Woodbury 
testified  that  he  was  present  and  saw  Wakefield  and  John  O'Brien 
deposit  ballots  for  Owen  Wood.  Connolly  told  Mr.  Woodbury  that 
he  voted  for  Wood,  and  John  B  Donnelly  testified  that  he  told  one 
Madden  that  he  voted  for  Wood,  although  on  the  witness-stand  he 
declined  to  state  for  whom  he  voted.  Connolly  and  Donnelly,  as 
well  as  all  the  others  above  named,  were  reputed  to  be  democrats, 
always  had  acted  with  that  party,  and  by  canvassing  committees 
and  others  active  in  the  politics  of  the  town  had  always  been  classed 
with  that  palt3^  and  were  so  classed  at  the  last  election.  And 
there  was  no  evidence  oflTered  or  claim  made  that  either  of  them 
had  ever  acted  or  voted  otherwise  than  with  that  party.  There 
were  but  two  candidates  voted  for,  for  representative  :  Owen  Wood, 
democrat,  and  John  A.  Woodbury,  republican.  Vide  Cushing's 
Law  of  Legislative  Assemblies.  §  199.  McCrary  on  Elections  § 
298,  299,  300.* 

Counsel  for  the  sitting  member  introduced  the  register  of  the 
town  of  Hopkinton  in  evidence,  and  the  names  of  all  the  persons 
found  by  this  report  to  have  voted  illegally  were  found  entered 
thereon  ;  and  it  was  claimed  that  this  register  was  conclusive  evi- 
dence of  the  qualification  to  vote  of  all  persons  whose  names  were 
found  thereon,  and  that  the  committee  could  not  go  behind  the 
register  and  inquire  into  the  qualification  of  any  such  person,  ex- 
cept for  fraud  duly  alleged  and  proved.  But  a  majority  of  the 
committee  were  of  a  different  opinion,  and  overruled  the  point 
taken. 

(A  cop3'  of  the  evidence  on  the  second  branch  of  the  petition, 

•  As  to  proper  evidence  to  prove  how  person  voted,  see  Palmer  v.  Howe,  ante,  145, 
and  editorial  note  with  authorities  thereto. 


OLAFLIN   V.    WOOD.       HOUSE,    1881.  359 

was  taken  down  by  the  stenographer,  and  reported  by  the  com- 
mittee.) 

The  conclusions  to  which  the  majority  of  the  committee  have 
come  make  the  vote  as  follows  :  — 

The  whole  number  of  votes  returned  for  Owen  Wood  was,      .        .     618 
Deduct  illegal  votes  cast  for  him, 9 

Leaves  the  whole  number  of  legal  votes  cast  for  Owen  Wood,        .     609 

Whole  number  of  votes  cast  for  John  A.  Woodbury,        .        .        .    615 
Deduct  the  number  of  legal  votes  cast  for  Owen  Wood,  .        .        .    609 


Leaves  a  plurality  for  Woodbury  of, 6 

The  majority  of  the  committee  therefore  report  the  accompany- 
ing resolution. 

[The  resoUition  declared  that  the  petitioner  was  duly  elected,  and 
entitled  to  the  seat.  The  resolution  was  rejected  by  the  house,  H. 
J.,  1881,  p.  411,  so  that  the  sitting  member  retained  his  seat.  Not- 
withstanding the  action  of  the  house,  the  editors  publish  the  report 
of  the  committee  as  valuable  as  a  precedent.  They  doubt,  how- 
ever, whether  the  action  of  the  committee  in  recounting  the  votes 
for  the  reasons  stated,  is  in  accordance  with  the  practice  and  prec- 
edents established  by  the  house.  1 


360  MASSACHUSETTS   ELECTIOX   CASES 1853-1885. 


SENATE,    1883. 

Special  Committee  on  Beturns  of  votes  for  Senators :  Hon.  Edward  P. 
LoRiNG,  Hon.  Walter  N.  Mason,  and  Hon.  Charles  A.  Sayward. 


Petitions  of  John  B.  Whitaker  and  John  W.  Cummings. 

Senate  Document,  No.  9.     January  16, 1883.     Report  by  all  the  Committee. 

Ballot,  Form  of.  The  provisions  of  the  statute  (Pub.  Stats,  chap.  7,  sect.  1),  that 
oflBcers  shall  be  voted  for  upon  one  ballot,  are  directory ;  and  where  a  voter  took  the 
regular  ballot  of  one  party,  and  erased  from  it  all  names  but  that  of  the  candidate 
for  governor,  and  then  took  the  regular  ballot  of  the  opposing  party  and  erased  from 
it  only  the  name  of  the  candidate  for  governor,  and  then  placed  the  two  papers  in  an 
envelope,  and  deposited  it  in  the  ballot-box,  it  was  held,  that  the  vote  for  senator 
upon  such  ballot  should  be  counted. 

Envelope.  Use  of  Unofficial.  A  ballot  enclosed  in  a  colored  envelope,  not  of  the 
kind  prescribed  by  the  statute,  and  deposited  in  the  ballot-box,  without  challenge 
or  objection  from  the  election  officers,  or  notice  that  it  was  not  of  the  proper  kind, 
should  be  counted ;  although  the  statute  (Pub.  Stats,  chap.  7,  sect.  4),  provides  that 
no  other  envelope  than  those  prescribed  shall  be  used  at  the  polls. 

Qualification  of  Voters.  Naturalization.  While  it  will  be  presumed  that  an  alien 
born  person,  voting  at  an  election,  has  been  naturalized,  the  presumption  is  overcome 
by  proof  that  he  had  not  been  in  the  country  the  required  length  of  time  to  be 
entitled  to  naturalization,'neither  the  voter  himself  nor  his  certificate  of  naturaliza- 
tion being  produced  before  the  committee ;  and  his  vote  should  be  rejected. 

Qualification  of  Voter.  Name  not  on  Check-list.  When  the  name  of  a  person  is 
not  on  the  voting  list,  and  he  has  not  asked  to  have  it  placed  there,  he  has  no  right 
to  vote,  and  if  he  votes,  his  vote  should  be  rejected. 

Same.  Name  stricken  off  in  one  Ward.  Where  the  name  of  a  person  is  on  the 
check-list  in  a  ward  of  a  city,  and  he  has  a  right  to  vote  in  that  ward,  he  has  no 
right  to  vote  in  another  ward  of  the  city,  and  if  he  so  votes,  his  vote  should  be 
rejected. 

Charles  J.  Notes  for  Mr.  Whitaker. 

The  Committee  on  Returns  of  Senatorial  Yotes,  to  whom  was 
referred  the  petitions  of  John  B.  Whitaker  and  John  W.  Cum- 
mings,  each  claiming  to  have  been  elected  senator  in  the  second 
Bristol  district,  have  duly  considered  the  same,  and  report  as  fol- 
lows :  — 

At  the  election  for  senator  in  the  second  Bristol  district,  6,137 
votes  were  cast  for  senator  in  said  district ;  of  these,  John  B. 
Whitaker  had  2,917,  John  W.  Cummings  had  2,917,  Joseph  W. 
Osborne  had  290,  and  all  others  13,  as  appeared  from  the  returns 
from  said  district ;  and  there  was  declared  to  be  no  choice. 


WHITAKER   V.    CUMMINGS.       SENATE,    1883.  3fil 

At  the  hearing  the  onh'  matters  in  dispute  were  relative  to  4 
votes  cast  in  the  city  of  Fall  River  in  said  district. 

John  B.  Whitaker,  the  republican  candidate  for  senator  in  said 
district,  claimed  that  a  vote  cast  b}'  Samuel  Sumner  in  ward  6  for 
said  Whitaker,  which  was  rejected  hy  the  wai'd  officers  and  b}-  the 
mayor  and  aldermen  in  a  recount  made  by  them  on  Nov.  9,  1882, 
should  be  counted  ;  and  that  a  vote  cast  by  one  William  Isherwood 
for  John  W.  Cummings,  the  democratic  candidate  for  senator  in 
said  district,  which  was  counted  by  said  ward  officers  and  by  said 
mayor  and  aldermen,  should  not  be  counted,  because  said  Isher- 
wood was  of  foreign  birth,  and  had  not  been  naturalized. 

On  the  other  hand,  said  John  W.  Cummings  claimed  that  said 
Sumner's  vote  should  not  be  counted,  because  it  was  not  upon  one 
ballot,  and  because  it  was  put  in  a  common  envelope  instead  of  the 
statute  envelope,  and  because  the  envelope  was  not  sealed. 

Said  Cummings  also  claimed  that  the  vote  of  John  T.  Graham, 
which  was  cast  in  ward  1  for  said  Whitaker,  and  which  was  counted 
for  him,  should  be  rejected,  for  the  reason  that  said  Gi'aham  was 
not  a  voter  in  said  ward,  and  his  name  was  not  on  the  check  list 
of  said  ward. 

Said  Cummings  also  claimed  that  a  vote  cast  in  ward  5  by 
Edward  Mitchell  for  said  Whitaker,  and  counted  for  him,  should 
be  rejected,  because  said  Mitchell's  name  was  not  upon  the  check 
list  of  said  ward. 

It  appeared  in  evidence  that  Samuel  Sumner  was  a  legal  voter 
in  ward  G,  that  he  was  dul^'  registered,  and  his  name  was  upon  the 
check  list  of  said  ward. 

That  said  Sumner  went  to  the  ward-room,  obtained  a  regular 
democratic  ticket,  and  with  a  pencil  erased  all  the  names  therefrom 
except  that  of  Benjamin  F.  Butler  for  governor,  and  procured  a 
regular  renublican  ticket  on  which  was  the  name  of  John  B.  Whit- 
aker  for  senator,  second  Bristol  district,  and  erased  therefrom  the 
name  of  Robert  R.  Bishop  for  governor,  and  retaining  all  the  other 
names  thereon,  including  that  of  John  B.  Whitaker  for  senator, 
second  Bristol  district,  and  folded  the  two  tickets  thus  erased  and 
put  them  in  a  colored  envelope,  but  not  the  one  prescribed  by  the 
Public  Statutes,  chap.  7,  and  endorsed  on  said  envelope  his  name 
and  street  on  which  he  resided,  to  wit :  "  Samuel  Sumner,  51  Canal 
Street,"  and  deposited  the  same  in  the  ballot-box. 

It  did  not  appear  that  Sumner  asked  for  the  statute  envelope,  or 
that  the  warden  notified  him  that  the  envelope  used  b^-  him  was 
not  the  right  kind,  or  gave  him  any  information  about  the  matter. 

Neither  did  it  appear  whether  the  envelope  was  sealed  at  the 


362  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

time  it  was  deposited  in  the  bos,  or  not.  The  vote  was  not  chal- 
lenged. 

The  Public  Statutes,  chap.  7,  sect.  1,  provides  that  in  the  election 
of  national,  state,  district  and  county  officers,  the  same  shall  be 
voted  for  on  one  ballot. 

The  committee  are  of  the  opinion  that  this  provision  of  the 
statute  is  director's  "  and  as  there  could  be  no  doubt  of  the  intent 
of  the  voter,  and  no  uncertainty  as  to  the  whole  number  of  ballots 
cast,"  the  fact  that  it  was  on  two  separate  pieces  of  paper  does  not 
invalidate  it.  Case  of  Danvers,  Mass.  Election  cases,  Gushing, 
S.  &  J.  648.* 

The  same  chapter  of  the  Public  Statutes,  sect.  12,  provides  that 
no  vote  shall  be  received  by  the  presiding  officers  at  any  election 
provided  for  in  this  chapter,  unless  presented  for  deposit  in  the 
ballot-box  bj'  the  voter  in  person,  in  a  sealed  envelope,  or  open 
and  unfolded  so  that  such  officers  can  know  that  only  one  ballot  is 
presented.  Section  4  of  the  same  chapter  provides  for  supplying 
voters  with  self-sealing  envelopes,  and  that  such  envelopes  shall  be 
of  uniform  size  and  color,  and  bear  the  arms  of  the  Commonwealth, 
and  that  no  other  envelopes  shall  be  used  at  the  polls. 

When  the  envelope  system  was  first  adopted,  chap.  226,  Acts  of 
1851,  the  statute  contained  an  express  provision  that  a  vote  de- 
posited in  any  other  manner  than  in  a  statute  envelope  and  sealed 
should  not  be  counted.  But  when  this  act  was  amended,  making 
it  optional  with  the  voter  to  use  the  envelope  or  not,  that  provision 
was  stricken  out  from  necessity,  but  the  provision  could  readil}'^ 
have  been  modified  so  as  to  apply  to  all  ballots  cast  in  any  other 
than  the  statute  envelope,  but  it  was  not  done. 

A  recent  act  of  the  legislature,  incorporated  in  the  Public  Stat- 
utes, chap.  7,  sects.  14,  15  and  16,  after  describing  the  size  of  the 
ballot,  kind  of  paper,  color  of  ink,  size  of  type  used  in  printing  the 
same,  and  providing  a  penalty  for  any  violation  in  these  respects, 
expressly  provides  that  any  want  of  conformit}'  in  these  particulars 
shall  not  authorize  the  refusal  to  receive  or  count  any  such  ballot. 

•  [Note  by  the  Editors.  Ballot  may  be  on  separate  Papers.  A  case  similar  to 
the  aljove  arose  in  Kansas,  and  the  court,  taliing  the  same  view  as  the  committee, 
held  that,  —  "  A  ballot,  where  several  officers  are  to  be  voted  for,  is  not  necessarily 
invalidated  and  to  be  rejected  because  consisting  of  two  pieces  of  paper;  and  where, 
in  such  case,  one  piece  of  paper  contains  only  the  title  of  certain  township  officers 
and  the  names  of  the  candidates  therefor;  and  the  other  only  the  titles  and  uames 
of  the  county  officers  and  candidates  therefor;  —  and  the  voter  folds  the  one  piece  of 
paper  within  the  other,  and  offers  it  to  the  judges  of  election  as  a  single  vote;  and  it 
it  so  received  and  deposited  by  them  in  the  ballot  box,  and  the  whole  is  done  in  good 
faith  and  the  voter  is  a  qualified  elector,  the  vote  so  cast  should  be  received  and 
counted."  Wild/nan  v.  Anderson,  17  Kansas,  344.  And  see  Coffey  v.  Edmonds,  5S 
Cal.  521.] 


WHITAKER   V.    CUMMINGS.       SENATE,    1883.  363 

There  is  no  warrant  for  rejecting  a  ballot  cast  in  such  an  envelope 
unless  the  statute  expressly'  provides  for  doing  so,  or  unless,  when 
all  the  legislation  upon  the  sul)ject,  now  in  force,  is  taken  together, 
such  intention  becomes  apparent. 

There  is  no  express  provision  of  law  for  rejecting  a  ballot  cast  in 
an  ordinary- envelope  ;  and  when  the  present  statutes  upon  the  sub- 
ject of  elections,  the  manner  of  conducting  the  same,  and  the 
method  of  obtaining  the  will  of  the  electors  through  the  ballot-box, 
are  examined,  it  becomes  evident  that  it  is  not  the  design  of  the 
statutes  to  nullify  the  will  of  the  voter  in  such  manner. 

Under  our  statutes  ballots  are  to  be  counted,  although  different 
from  the  statute  size,  and  although  upon  several  pieces  of  paper, 
when  the  letter  of  the  statute  requires  them  to  be  on  one  ;  and  in 
case  of  several  ballots  for  the  same  person  found  in  one  envelope, 
one  of  them  shall  be  counted,  although  it  is  unlawful  for  the  voter 
to  deposit  more  than  one.  It  seems,  therefore,  to  be  contrary  to 
sound  reason  and  the  spirit  of  our  statutes  and  the  judicial  and 
legislative  construction  of  them,  to  hold  that  a  ballot  cast  in  good 
faith  and  without  fraud  by  a  legal  voter,  who  has  complied  with  all 
the  provisions  of  law  which  entitle  him  to  deposit  his  ballot,  should 
be  rejected  because  it  was  deposited  in  the  ballot-box  in  a  common 
envelope  instead  of  the  one  prescribed  by  the  statute. 

Again,  it  was  the  duty  of  the  warden  to  have  refused  the  ballot, 
and  directed  the  voter  to  use  the  statute  envelope. 

But  no  such  duty  was  performed  b}'  that  officer,  in  this  case  ; 
and  to  refuse  to  count  a  vote  thus  ignorautly  deposited  by  a  voter, 
would  open  the  door  to  gross  frauds  on  the  part  of  election  officers, 
who  might  intentionally  let  and  encourage  voters  to  deposit  their 
ballots  in  such  envelopes,  in  order  that  they  might  be  rejected  in 
the  count,  and  thus  materially  affect  the  result  in  the  interest  of 
one  part}'  or  the  other. 

There  was  no  evidence  as  to  whether  the  envelope  was  sealed  or 
not  when  it  was  deposited.  The  only  evidence  upon  the  subject 
was  that  it  was  unsealed  when  it  was  taken  out  of  the  box  by  the 
counting  officers. 

The  presumption  is,  till  the  contrary  appears,  that  the  envelope 
was  sealed  when  it  was  deposited.  Case  of  North  Chelsea^  Mass. 
Election  Cases,  Gushing,  S.  &  J.  644. 

The  committee  are  therefore  of  the  opinion  that  none  of  the 
grounds  presented  for  rejecting  the  Sumner  vote  are  tenable,  and 
that  it  should  be  counted  for  John  B.  Whitaker.* 

*  [  XoTE  BY  THE  EDITORS.  Counting  Ballots  deposited  in  unofficial  Envelopes,  or 
not  of  the  Form  prescribed  by  Statute.  The  question  whctbcr  ballots  in  unofficial  envel- 
opes, or  not  in  the  form  prescribed  by  statute,  can  be  counted,  is  a  question  of  statute 


364  MASSACHUSETTS    ELECTION   CASES  —  1853-1885. 

It  further  appeared  in  evidence  from  the  warden,  that  one  Wil- 
liam Isherwood  entered  the  ward-room  of  ward  5,  and  approached 
the  ballot-box  to  deposit  his  ballot,  that  his  name  was  called  and 
checked,  and  he  had  his  hand  over  the  box,  with  the  ballot  in  his 

construction.  Unless  the  statute  expressly  or  by  necessary  implication  forbids  the 
counting  of  such  ballots,  they  should  be  counted,  if  once  deposited  in  the  ballot- 
box,  even  if  irregular  in  form.  The  general  rule  for  the  construction  of  election 
statutes  is  thus  stated  by  Judge  Cooley :  "  Election  statutes  are  to  be  tested  lilie  other 
statutes,  but  with  a  leaning  to  liberality  in  view  of  the  great  public  purposes  which 
they  accomplish ;  and  except  where  they  specifically  provide  that  a  thing  shall  be 
done  in  the  manner  indicated  and  not  otherwise,  their  provisions  designed  merely 
for  the  information  and  guidance  of  the  officers  must  be  regarded  as  directory  only, 
and  the  election  will  not  be  defeated  by  a  failure  to  comply  with  them,  provided 
the  irregularity  has  not  hindered  any  who  were  entitled  from  exercising  the  right  of 
suffrage,  or  rendered  doubtful  the  evidences  from  which  the  result  was  to  be  de- 
clared." Constitutional  Limitations  (5th  ed.),  p.  777.  As  a  rule,  however,  negative 
words  in  a  statute,  expressly  forbidding  the  counting  of  informal  votes,  make  the 
statute  mandatory,  —  and  such  votes  must  be  thrown  out  in  an  election  controversy. 
So  in  Missouri,  under  a  statute  providing  that  all  ballots  cast  should  be  numbered, 
and  that  unnumbered  ballots  should  not  be  counted,  it  was  held  that  the  election  of 
an  officer  by  unnumbered  ballots  was  invalid.  West  v.  Boss,  53  Mo.  350.  And 
under  a  by-law  of  a  religious  society,  that  ballots  containing  anything  besides  the 
names  should  not  be  counted,  —  the  court  in  Pennsylvania  held  that  ballots  upon 
which  an  eagle  was  engraved  could  not  be  counted.  Commonwealth  v.  Woelper,  3 
Ser.  &  II.  (Penn.)  29. 

For  the  purpose  of  securing  to  the  voter  the  privilege  of  secresy,  necessarily  in- 
volved in  ballot-voting,  many  of  the  States  have  prescribed  by  statute,  the  size,  color, 
type,  etc.,  of  the  ballot  to  be  used,  and  expressly  provided  that  no  other  ballots  shall 
be  counted.  But  these  statutes  have  almost  invariably  received  a  liberal  construc- 
tion from  the  courts  in  passing  upon  the  question,  whether  the  ballots  in  question 
conformed  to  the  statute  requirement.  So,  paper  tinged  with  blue  was  regarded  as 
"white"  within  the  meaning  of  the  statute.  People  v.  KUdnf,  15  111.492.  The 
words  "  Republican  Ticket "  on  the  ballot  were  not  regarded  as  a  distinguishing 
mark  or  embellishment,  in  Stanley  v.  Manly,  35  Ind.  275.  Nor  were  the  words 
"City  Union  TickeX.,"  Druliner  \ .  State,  29  Ind.  308.  Printing  the  names  on  the 
ballot  so  that  they  could  be  seen  through  the  paper,  does  not  invalidate  it.  State  v. 
Adams,  65  Ind.  393.  If  the  statute  prescribes  simply  plain  white  paper  for  the  bal- 
lots, no  grade,  quality,  or  thickness  of  paper  is  required,  and  absolute  uniformity  is 
not  necessary.  State  v.  Wasson,  99  Ind.  261.  And  see  for  similar  decisions.  Turner 
V.  Drake,  71  Mo.  285;  Roller  v.  Truesdnle,  26  Ohio  St.  586;  Applegate  v.  Eagan,  74 
Mo.  258;  Mlltholland  v.  Bryant,  39  Ind.  363;  People  v.  Bates,  11  Mich.  362.  In 
Kirk  V.  Rhoads,  40  Cal.  398,  the  court  distinguishes,  under  the  California  statute, 
between  matters  over  which  the  elector  has  no  control,  and  matters  entirely  within 
his  control :  —  "  Whether  the  paper  on  which  his  ballot  was  printed  was  furnished 
by  the  secretary  of  state  or  not,  or  upon  paper  in  every  respect  precisely  like  such 
paper, or  whether  it  is  four  inches  in  widtb  and  twelve  inches  in  length,  or  falls  short 
of  the  measurement  by  an  eighth  or  a  sixth  or  a  fourth  of  an  inch,  or  whether  it  is 
printed  in  long  primer  capitals  or  not,  or  whether  it  is  single  or  double  leaded ;  these 
are  matters  over  which  the  great  majority  of  electors  have  no  control,  and  about 
some  of  which  they  are  entirely  ignorant.  The  ballots  are  always  furnished  on  the 
day  of  election  by  committees  appointed  for  the  purpose  by  the  respective  political 
parties,  or  by  independent  candidates  or  their  friends.  The  elector  in  but  few 
instances  ever  sees  these  tickets  until  he  approaches  the  polls  to  cast  his  ballot,  and 
It  would  be  absurd  in  the  extreme  to  require  him  to  have  a  rule  bv  which  he  could 
measure  and  ascertain  whether  his  ticket  exceeded  or  fell  short  of  twelve  inches  in 


WHITAKER   V.    CUMMINGS.       SENATE,    1883.  365 

hand,  when  his  right  to  vote  was  challenged  l)}-  United  States 
Snpervisor  James  Crowther  ;  that  Isherwood  dropped  the  vote  just 
as  he  was  challenged  ;  that  the  vote  fell  on  the  edge  of  the  box, 
and  hung  part  in  and  part  out  of  the  box  ;   that  the  warden  asked 

length,  by  a  sixth  of  an  inch,  or  only  by  an  eifrbth  of  an  inch,  or  whether  the  color 
of  his  ticket  was  of  the  exact  .shade  of  the  paper  furnished  by  the  secretary  of  state. 
Aijain,  not  one  elector  in  five  hundred  knows  the  difference  between  long  primer 
capitals,  or  any  other  capitals,  or  whether  his  ticket  is  single  or  double  leaded. 

It  is  impossible  that  he  should  know,  or  be  able  to  determine  these  facts 

There  are,  however,  other  requirements  of  the  code  within  the  power  of  the 
elector  to  control,  and  these,  if  wilfully  disregarded,  should  cause  his  ballot  to  be 
rejected.  He  can  see,  for  Instance,  that  his  ballot  is  free  from  every  mark,  character, 
device,  or  thing  that  would  enable  any  one  to  distinguish  it  by  the  back;  and  if  in 
wilful  disregard  of  law,  he  places  a  name,  number,  or  other  mark  on  it,  he  cannot 
complain  if  his  ballot  is  rejected  and  he  loses  his  vote."  (pp.  406,  407.)  And  see 
Wyman  v.  Lemon,  51  Cal.  273. 

Where  the  Statute  does  not  forbid  the  coimting  of  such  informal  Ballots,  they  should 
he  counted.  The  present  statute  in  Massachusetts  regulating  the  form  of  ballot 
expressly  provides,  that  "  nothing  herein  contained  shall  authorize  tlie  refusal  to 
receive  or  count  any  ballot,  for  any  want  of  conformity  with  the  requirements  of  this 
section  "  Pub.  Stats,  chap.  7,  sect.  14.  In  regard  to  votes  enclosed  in  envelopes,  the 
statute  requires  that  "  such  envelopes  shall  be  of  uniform  size  and  color,  and 
bear  the  arms  of  the  Commonwealth,  and  no  other  envelopes  shall  be  used  at  the 
polls."  Pub.  Stats,  chap.  7,  sect.  4 ;  and  "  no  vote  shall  be  received  by  the  presiding 
officers  at  any  election  provided  for  in  this  chapter,  unless  presented  for  deposit  in 
the  ballot-box  by  the  voter  in  person,  in  a  sealed  envelope,  or  open  and  unfolded." 
Pub.  Stats,  chap.  7,  sect.  12.  The  only  negative  words  in  the  statute  regarding 
envelopes  forbid  the  use  or  possibly,  the  reception,  of  votes  in  unofficial  envelopes; 
but  do  not  forbid  the  counting  of  such  votes  if  once  received  in  the  ballot-box.  The 
statute  in  this  respect  is  somewhat  similar  to  the  statute  in  Maine,  of  which  the 
iustices  of  the  Supreme  Court  recently  said :  "The  presiding  officers  are  to  deter- 
mine whether  the  ballot  offered  has  a  distinguishing  mark  or  figure,  so  that,  if 
rejected,  the  voter  may  procure  a  ballot,  if  he  chooses,  to  which  no  exception  can  be 
taken.  But  if  the  ballots  have  distinguishing  marks  or  figures,  it  is  no  part  of  the 
duty  of  the  officers  of  the  town  to  make  any  report  in  reference  thereto.  They  should 
reject  the  ballot,  if  offered,  when  it  is  within  the  prohibition  of  the  statute.  The 
statute  prohibits  the  rejection  of  the  ballot '  after  it  is  received  in  the  ballot-box.'    It 

is  then    to    be  counted When  the   ballot  has    been    once 

received  in  the  ballot-box,  neither  the  selectmen  nor  the  governor  and  council  can 
refuse  to  count  it."     Opinion  of  Justices,  70  Me.  560,  566. 

As  the  counting  of  votes,  once  received,  in  unofficial  envelopes  is  not  expressly 
prohibited,  the  case  seems  to  the  editors  to  come  within  that  class  of  cases  where  the 
court  refuses  to  import  into  a  statute  provision  regarding  elections,  an  implication 
which  will  make  it  mandatory  in  its  effect,  and  thereby  defeat  the  bona  fide  vote  of  a 
qualified  voter.  Cooley  Con.  Lim.  (5th  ed.),  pp.  776,  779;  McCrary  Elections,  §§ 
126,  133 ;  People  v.  McMamts,  34  Barb.  (N.  Y.),  620.  And  see  the  language  of  the 
court  in  holding  that  printed  votes  were  written  votes  within  the  rcquircnicnt  of  the 
Constitution.  Henshaw  v.  Foster,  9  Pick.  312.  The  editors  do  not  attempt  to  recon- 
cile the  decision  of  the  senate  in  the  above  reported  case,  with  that  of  the  house  of 
representatives  in  1858,  in  Taft  v.  Cole,  ante,  p.  45.  The  high  character  of  the  Com- 
mittee on  Elections  in  that  year  gives  additional  weight  to  the  decision  of  the  house 
in  that  case.  But  in  the  light  of  the  recent  legislation  and  in  that  of  the  decisions  of 
the  supreme  judicial  court  (see  Clark  v.  Board  of  Examiners,  126  Mass.  282,  285,  and 
Commonwealth  v.  Smith,  132  Mass.  289,  296),  the  editors  regard  the  decision  of  the 
senate  in  the  above  case  as  correct.    As  the  object  of  the  envelope  is  mainly  to 


oOG  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

him  if  he  still  insisted  upon  the  riglit  to  vote,  and  he  answered  in 
the  affirmative,  whereupon  the  warden  tof)k  up  the  ballot,  having 
the  name  of  John  W.  Curamings  on  it  for  senator,  and  made  the 
following  endorsement  thereon,  to  wit : — 

"  Ishcrwood,  William,  challenged  by  Supervisor  James  Crowther 
for  being  an  illegal  voter."  And  the  warden  then  put  the  ballot 
into  the  box,  and  this  ballot  was  counted  for  John  W.  Cummings. 

Isherwood  was  arrested  immediately  by  the  United  States 
marshal,  and  carried  to  Boston. 

It  was  claimed  that  Isherwood  was  born  in  England,  and  had 
not  been  naturalized.  James  Crowther  testified  that  he  knew  him, 
and  that  he  had  not  been  in  this  country  three  years  at  the  time  he 
voted.  United  States  Marshal  George  Low  testified  that  after  his 
arrest,  and  while  on  the  road  to  Boston,  Isherwood  told  him  he 
had  not  been  in  this  country  three  years. 

It  also  appeared  that  efforts  had  been  made  to  find  Isherwood, 
and  bring  him  before  the  committee  to  testify  ;  but  he  could  not  be 
found,  and  John  W.  Cummings  testified  that  he  was  frightened, 
and  kept  out  of  reach.  His  naturalization  papers  were  not  pro- 
duced. 

Isherwood  was  duly  registered,  and  his  name  appeared  upon  the 
check-list  of  ward  5. 

Judge  McCrary,  in  his  Treatise  on  American  Law  of  Elections, 
§  294,  says:  "It  seems  to  be  quite  well  settled  that  where  one 
who  is  alien  born  has  voted  at  an  election,  the  law  presumes  that 
he  has  been  naturalized  until  the  contrary  is  shown." 

"But,"  he  adds,  "the  very  great  difficulty  of  proving  that  a 
person  has  not  been  naturalized,  would  seem  to  require  that  slight 
proof  ought  to  be  suflflcient  to  shift  the  burden.  Thus,  if  it  be 
shown  that  he  claimed  that  aliens  had  the  right  to  vote,  or  if  he 
had  made  declarations  or  admissions  to  the  effect  that  he  had  not 

been  naturalized the  presumption  that  such  a  voter 

was  duly  naturalized  ought  to  be  regarded  as  so  far  overcome  as  to 
require  the  party  seeking  to  sustain  his  vote  to  produce  affirmative 
evidence  of  his  naturalization." 

In  the  light  of  this  principle  the  committee  are  of  the  opinion 
that  the  vote  of  Ishcrwood  should  be  rejected. 

conceal,  and  make  secret  the  ballot,  and  that  object  can  be  as  well  attained  in  one 
envelope  as  in  another,  it  would  seem,  as  said  by  Mr.  Justice  Field  in  Common- 
tcealth  V.  Smith,  uhi  sitpra,  that  "the  provisions  of  the  statutes  which  have  been 
disregarded  in  this  case  are  not  of  the  essence  of  the  thing  required  to  be  done"; 
and  whether  they  are  directory  or  mandatory  to  the  election  officers  in  cities  and 
towns,  "  upon  a  case  of  a  controverted  election,  brought  before  a  legislative  body 
vested  with  the  power  of  determining  the  election,"  they  may  well  be  held 
directory  only.] 


WITITAKER    V.    CUMMINGS.       SENATE,    1883.  367 

As  to  the  vote  of  John  T.  Graham,  it  appeared  that  Graham  had 
lived  in  ward  2,  and  tbat  previous  to  the  assessment  of  taxes  for 
1882  he  moved  to  ward  1  ;  that  he  was  assessed  in  both  wards,  and 
when  he  went  to  pay  his  taxes,  was  told  that  his  tax  in  ward  1 
would  be  abated. 

It  also  appeared  that  Graham's  name  had  been  on  the  check-list 
of  ward  1,  and  was  stricken  off  from  that  list  on  the  Mondaj'  after- 
noon prior  to  election.  His  name  was  on  the  check-list  of  ward  2, 
and  he  was  entitled  to  vote  in  that  ward. 

On  election  da}'  Graham  went  to  the  ward-room  of  ward  1, 
obtainpd  a  regular  republican  ticket  on  which  was  the  name  of  John 
B.  Whitaker  for  senator  for  the  second  Bristol  district,  and  pro- 
cured a  statute  envelope,  put  this  ballot  into  it,  sealed  it,  and 
endorsed  his  name  on  the  envelope,  and  deposited  it  in  the  ballot- 
box  for  ward  1,  and  the  warden  checked  his  name,  although  it  was 
stricken  off  the  list  by  two  lines  drawn  through  it  with  a  pen.  This 
ballot  was  counted,  both  by  the  ward  officers  and  the  aldermen,  in 
the  recount  for  John  B.  Whitaker. 

The  Public  Statutes,  chap.  7,  sect.  9,  provides  for  a  list  of  the 
qualified  A'oters  for  each  voting  precinct,  and  also  expressly  pro- 
vides that  no  person  shall  vote  at  an  election  whose  name  has  not 
been  previously  placed  on  such  list,  and  the  supreme  court  has  held 
that  such  regulation  "  is  highlv  reasonable  and  useful,  calculated 
to  promote  peace,  order  and  celerity  in  the  conduct  of  elections,  and 
as  such  to  facilitate  and  secure- this  most  precious  right  to  those 
who  are  by  the  Constitution  entitled  to  enjoy  it,"  and  that  it  is  a 
valid  and  binding  law,  "  to  which  both  voters  and  presiding  officers 
at  elections  are  authorized  and  bound  to  conform." — Capen  v.  Foster, 
12  Pick.  492. 

And  further,  Graham  was  not  a  resident  of  the  ward  in  which-he 
voted,  and  had  no  more  right  to  vote  there  or  have  his  name  put 
on  the  voting  list  of  that  ward  than  a  qualified  voter  of  Beverly 
has  to  vote  in  Northampton. 

Your  committee  are  of  the  opinion  that  Graham's  vote  should 
not  be  counted. 

As  to  the  vote  of  Edward  Mitchell,  it  appeared  that  he  voted  in 
ward  5,  and  put  the  ticket  on  which  was  the  name  of  John  B. 
Whitaker  for  senator,  second  Bristol  District,  into  a  statute  envel- 
ope, sealed  it,  and  wrote  his  name  on  the  envelope  and  deposited 
it  in  the  ballot-box  of  that  ward. 

It  appeared  that  Mitchell's  name  was  not  upon  the  check-list 
of  that  ward,  nor  upon  the  list  of  any  ward  in  the  city  of  Fall 
River,  and  it  was  not  claimed  that  he  asked  to  have  it  put  on  any 
check-list. 


368  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

This  vote  was  counted  for  John  B.  Whitaker  b}-  both  the  ward 
officers  and  the  aldermen. 

The  committee  are  of  opinion  that  Mit.chell's  vote  should  be 
rejected  upon  the  same  ground  as  Graham's. 

The  result  of  the  committee's  findings  are  as  follows,  to  wit : 
From  the  vote  of  John  B.  Whitaker,  as  returned,  to  wit:  2,917, 
take  the  votes  of  Graham  and  Mitchell,  which  leaves  2,915,  and 
add  the  vote  of  Sumoer,  which  makes  Whitaker's  vote,  as  it  should 
stand,  2,916. 

From  the  vote  of  John  W.  Cummings,  as  returned,  to  wit: 
2,917,  take  the  Isherwood  vote,  which  leaves  Cummings'  vote  as  it 
should  stand,  2,916,  and  the  result  is  a  tie. 

Your  committee  therefore  report  that  there  was  no  choice  in  the 
election  of  senator  in  the  second  Bristol  district. 

The  committee  therefore  report  that  the  petitioners  have  leave  to 
withdraw,  and  recommend  the  adoption  of  the  accompanying  order. 

[The  order  provided  for  a  precept  for  a  new  election  in  the  dis- 
trict. The  report  of  the  committee  was  accepted,  and  the  order 
was  adopted.     S.  J.,  1883,  p.  45.] 


Charles  H.  Allen  v.  Jeremiah  Crowley. 

Special  Committee  on   Return  of  Votes  for  Senators :    Hon.   Edward  P. 
LoRiXG,  Hon.  John  R.  Baldwin,  and  Hon.  Charles  A.  Sayward. 

Senate  Document,  No.   13.     January  26,   1883.     Report  by  all  the  Com- 
mittee. 

Becount  of  Votes  granted.  The  fact  that  the  board  of  aldermen  of  a  city  consti- 
tilting  a  senatorial  district  recounted  the  votes  cast  for  senator  at  the  same  time  and 
in  the  same  room  where  and  when  they  were  recounting  the  votes  cast  for  repre- 
sentatives to  the  general  court,  the  names  of  senator  and  representatives  being  on 
the  same  general  ticket,  no  committee  of  the  board,  and  no  one  member  thereof 
counting  all  the  votes  cast  for  senator,  but  where  the  votes  were  distributed  in 
parcels  to  members  of  the  board  "acting  by  twos,"  such  members  giving  the  results 
of  their  counting  to  the  city  clerk,  who  footed  and  declared  the  aggregate  result, 
which  was  not  verified  by  any  member  of  the  board,  will  warrant  a  recount  by  the 
senate  of  votes  cast  for  senator. 

Frederic  T.  Greejuhalge  for  petitioner. 

This  is  a  petition  for  a  recount  of  the  votes  cast  for  senator  in 
the  seventh  Middlesex  district  composed  of  the  city  of  Lowell. 


ALLEN   V.    CROWLEY.       SENATE,    1883.  3G9 

The  petition  alleges  in  substance  as  ground  for  the  recount  asked 
for,  that  the  petitioner  at  the  election  received  4,332  votes,  which 
was  a  pluralit}'  of  the  votes  cast  for  senator  as  found  and  duly 
declared  by  the  ward  officers  of  the  city  ;  that  subsequently  and  on 
the  same  day  of  the  election  the  board  of  aldermen  of  Lowell  pre- 
tended to  recount  the  votes  cast  for  senator,  and  declared  that  the 
petitioner  received  only  4,307  votes,  whilst  the  sitting  member 
received  4,334  votes  and  was  elected. 

The  petitioner  further  alleged  that  he  believed  and  had  reason  to 
believe  that  there  were  great  inaccuracies  in  said  recount  and  that 
man}'  errors  were  made  therein  by  reason  of  the  "misapplication 
of  the  legal  principles  governing  such  matters."  The  specific 
praj-er  of  the  petition  is  that  the  said  returns,  recount  and  votes 
may  be  examined  by  the  senate,  and  revised  and  corrected  as  law 
and  justice  may  I'equire.  The  committee  was  of  the  opinion  that 
prima  facie  no  ground  for  a  recount  by  the  senate  was  set  forth  in 
the  petition,  and  called  upon  the  petitioner,  as  was  done  in  Clapp 
v.  Sherman,  ante,  p.  307,  to  furnish  specifications  of  any  errors  or 
inaccuracies  upon  which  he  relied,  and  also  of  all  "  misapplications 
of  the  legal  principles  governing  such  matters." 

Whereupon,  the  petitioner  filed  with  the  committee  a  statement, 
the  main  allegations  of  which  are  that  the  said  board  of  aldermen 
recounted  the  senatorial  votes  and  the  votes  for  representatives  to 
the  general  court  for  the  several  districts  in  Lowell,  at  the  same 
time  and  in  the  same  room  ;  and  that  no  committee  and  no  one 
member  of  said  board  counted  all  the  votes  for  senator,  but  that 
the  votes  were  parcelled  out  to  different  members  of  the  board 
acting  in  couples,  and  that  the  results  as  found  were  given  to  the 
city  clerk,  who  made  the  footing  to  show  the  aggregate  result  and 
that  this  footing  was  not  verified  by  any  member  of  the  board. 

Thereupon,  the  committee  decided  to  give  a  preliminary  hearing 
to  the  parties,  and  summoned  the  entire  board  of  aldermen  of  Lowell. 

At  the  hearing,  it  full}'  appeared  that  the  material  allegations  in 
the  specifications  were  full}-  sustained,  and  the  committee  believing 
that  the  board  of  aldermen  had  not  made  the  "  examination  "  pro- 
vided in  Pub.  Stats.,  chap.  7,  sect.  36,  voted  to  recount  the  votes 
themselves. 

Each  member  of  the  committee  handled  and  counted  every  vote, 
and  the  committee  declared  the  result  to  be  that  Hon.  Charles.  H. 
Allen  had  a  plurality  of  twenty-five  votes  over  Hon.  Jeremiah 
Crowle}',  and  was  duly  elected. 

By  the  return  of  the  board  of  aldermen  of  Lowell  it  appeared 
that  Jeremiah  Crowley  had  4,334  votes  and  Charles  H.  Allen  had 
4,307  votes. 


370  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

The  coramittee  find  and  report,  that  Hon.  Jeremiah  Crowley  was 
not  elected  to  the  senate  from  the  seventh  Middlesex  senatorial 
district,  and  is  not  entitled  to  hold  the  seat  occupied  by  him  ;  and 
that  Charles  H.  Allen  was  duly  elected  to  the  senate  from  the 
seventh  Middlesex  senatorial  distinct,  and  is  entitled  to  take  the 
seat  therein. 

[The  report  of  the  committee  was  accepted.     S.  J.,  1883,  p.  76.] 


John  F.  McMahan  v.  James  A.  McGeough. 

Special   Committee  on  Beturn  of  Votes  for   Senators  — Kou.  Edward  P. 
LoRixG,  Hou.  John  R.  Baldwin,  and  Hon.  Charles  A.  Sayward. 

Senate,  unprinted.     January  10,  1883.     Report  by  Mr.  Loring,  Chairman. 

Recount  of  Votes  refused.  The  fact  that  the  board  of  aldermen  of  Boston  con- 
sumed not  more  than  one  hour  in  recounting  the  ballots  cast  in  the  district  for  sena- 
tor will  not  justify  a  recount  by  the  senate. 

Some.  The  fact  that  the  board  of  aldermen  of  Boston  has  frequently,  in  the  past, 
changed  the  results  of  elections,  as  declared  by  the  precinct  and  ward  officers,  by 
recounts  of  the  ballots  cast,  will  not  justify  a  recount  of  the  vote  for  senator  by  the 
senate,  in  the  absence  of  evidence  that  the  board  of  aldermen  for  the  year  in 
which  a  controverted  election  is  held,  habitually  miscounted  ballots. 

Same.  The  senate  will  not  recount  the  ballots  cast  for  a  senator  in  one  of  the 
SulTolk  districts,  because  there  is  a  possibility  that  a  recount  by  the  board  of  alder- 
men of  Boston  was  erroneous  and  wrong. 

Same.  Rule  that  votes  will  not  be  recounted  merely  because  the  plurality  is  small 
reaffirmed. 

The  Committee  on  Return  of  Votes  for  Senators,  to  whom  was 
referred  the  petition  of  John  F.  McMahan  for  a  recount  of  the  votes 
in  the  fifth  Suffolk  senatorial  district,  having  met  the  petitioner  and 
the  sitting  member,  and  having  heard  the  statements  of  both  parties, 
submit  the  following  report : 

The  fifth  Suffolk  senatorial  district  consists  of  wards  13,  14  and 
15,  in  the  city  of  Boston.  By  the  return  of  the  ward  oflScers  duly 
made  it  appeared  that  the  petitioner  was  elected  by  a  plurality  of 
106  votes.  Thereupon  the  sitting  member  asked  the  board  of 
aldermen  to  recount  the  ballots.  They  did  recount  the  same,  and 
declared  the  result  to  be  the  election  of  the  sitting  member  by  a 
plurality  of  forty-one  votes. 


McMAHAN   V.    McGEOUGH.       SENATE,    1883.  371 

The  petitioner  claimed  the  seat  for  two  reasons,  as  set  forth  in 
his  petition  as  follows  r  For  fraud  [practised  by  the  election  officers 
in  the  first  precinct  of  ward  13,  where  the  name  of  the  petitioner 
was  erased  or  pasted  over,  after  the  ballots  had  been  deposited  in 
the  ballot-l)ox.  Because  the  recount  by  the  board  of  aldermen  is 
erroneous  and  wrong. 

At  the  hearing  before  the  committee  the  petitioner  withdrew  the 
charge  of  fraud  and  rested  his  case  on  the  second  specification,  to 
wit,  that  the  recount  was  erroneous  and  wrong.  The  principle  be- 
ing well  established  that  a  recount  will  not  be  granted  bj'  the  senate 
for  no  other  reason  than  that  the  pluralit}-  against  a  claimant  is 
small,  the  committee  called  upon  the  petitioner  to  show  why  the 
recount  was  en'oneous  and  wrong. 

Whereupon  the  petitioner  stated  that  the  ballots  of  the  district 
in  question  were  recounted  between  the  hours  of  eight  and  ten 
o'clock  of  the  night  of  the  election,  and  he  believed  that  not  more 
than  one  hour  was  devoted  to  that  service  by  the  board  of  alder- 
men, a  time  claimed  by  the  petitioner  as  being  too  short  for  an 
accurate  performance  of  that  duty. 

And,  second,  that  the  board  of  aldermen  of  Boston  has,  so  often, 
in  the  past,  changed  the  result  of  elections  by  recounts,  that  it  is 
probable  a  mistake  was  made  in  this  particular  case,  which  another 
count  b}'  3'our  committee  would  be  likely  to  detect. 

Your  committee,  taking  the  case  most  stronglj^  in  favor  of  the 
petitioner,  and  granting  for  the  purpose  of  the  argument  that  not 
more  than  one  hour  was  occupied,  by  the  board  of  aldermen  of  Bos- 
ton, in  recounting  the  ballots  of  the  fifth  Suflfolk  senatorial  district, 
do  not  regard  that  fact  as  sufficient  to  justif}'  them  in  recounting 
the  votes. 

Upon  the  second  point,  it  was  not  claimed  by  the  petitioner  that 
the  board  of  aldermen  of  Boston  for  the  3'ear  1882  habitually  mis- 
counted ballots  for  officers  elected  by  the  people,  and  your  com- 
mittee decline  to  recount  the  ballots  because  there  is  a  possibility 
that  the  count  by  the  said  board  of  aldermen  was  erroneous  and 
wrong. 

It  may  be  well  to  add  that  the  petitioner  and  the  sitting  member 
both  belong  to  the  same  political  party. 

The  committee  find  and  report  that  the  sitting  member  James  A. 
McGeough  is  entitled  to  the  seat  now  occupied  by  him,  and  recom- 
mend that  the  petitioner  have  leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.   S.  J.,  1883,  p.  31.] 


372  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 


HOUSE  — COMMITTEE     ON    ELECTIONS,    1883. 

Messrs.  George  A.  O.  Ernst  of  Boston,  Chairman;  James  W.  Switzer 
of  Lynn,  James  R.  Extwistle  of  Framingham,  Herbert  L.  Peck  of 
Taunton,  Samuel  I.  Rice  of  Northborough,  Henry  J.  White  of  Wes- 
ton, and  Franklin  I.  Webster  of  Montague. 


Joel  W.  Harris  v.  David  M.  Richardson. 

House  Document,  No.  14.     January  19,  1883.     Report  by  George  A.  O. 

Ernst,  Chairman. 

Recount  of  Votes  refused.  Where  two  reputable  persons,  not  selectmen  or  sworn, 
assisted  in  counting  the  votes,  —  all  votes,  however,  either  during  the  election,  or  at 
its  close  and  before  the  vote  was  declared,  having  been  counted  by  the  selectmen,  — 
it  was  held,  that  while  the  practice  of  allowing  unsworn  and  unoflBcial  persons  to 
handle  and  count  the  ballots  was  censurable,  it  is  not  sufficient  ground  for  a  re- 
count of  the  votes  by  the  house  of  representatives. 

T.  G.  Kent  for  "petitioner. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Joel  W.  Harris  for  a  recount  of  votes  cast,  and  that  he  may  be 
admitted  as  representative  for  the  second  "Worcester  representative 
district,  have  considered  the  same,  and  report  as  follows  :  — 

At  the  election  in  November  last,  the  petitioner,  according  to  the 
official  returns,  received  1,026  votes,  and  the  sitting  member, 
David  M.  Richardson,  received  1,046  votes.  The  petitioner 
alleges  that  in  the  haste  and  confusion  incident  to  the  sorting  and 
counting  such  a  large  number  of  votes,  he  believes  that  errors 
were  made  in  counting  the  ballots,  and  that,  if  correctly  counted, 
it  would  appear  that  he  received  more  votes  than  the  sitting  mem- 
ber, and  should  have  been  declared  elected. 

At  the  hearing,  the  only  evidence  offered  of  error  in  the  count 
was  that  in  the  town  of  Milford  in  said  district,  two  persons,  — 
neither  of  whom  was  a  selectman  of  said  town,  or  had  been 
sworn,  — were  present,  and  assisted  in  the  sorting  and  counting  of 
the  ballots  cast  in  said  town.  It  was  agreed,  however,  that  dur- 
ing the  pendency  of  the  election,  or  at  its  close,  and  before  the 
ballot  was  declared,  the  votes  were  all  counted  by  the  selectmen  ; 
that  the  persons  thus  assisting  were  reputable,  and  no  charge  is 
made  that  they  were  not  honest  men.  There  was  no  charge  of 
fraud  of  any  sort,  nor  of  speciQc  error.     But  it  was  claimed  that 


HARRIS   V.    RICHARDSON.       HOUSE,    1883.  373 

as  the  statute  (Pub.  Stats.,  chap.  7,  §  26)  expressly  provides 
that  "  the  votes  in  elections  for  national,  state,  county,  and  dis- 
trict officers  sliall  be  received,  sorted  and  counted  by  the  select- 
men," they  had  no  right  to  call  in  outside  assistance,  and  the  mere 
fact  of  their  so  doing  was  of  itself  sufficient  reason  for  assuming 
error  and  ordering  a  recount. 

This  question  of  the  right  of  selectmen  to  appoint  tellers  has 
arisen  in  several  different  forms,  in  previous  election  cases.  And, 
although  the  practice  has  been  uniformly  condemned,  we  find  no 
case  which  decides  that  it  is  of  itself  a  ground  for  recounting  the 
votes. 

In  1852,  in  this  house,  the  election  of  the  member  from  Chester 
was  contested  on  this  ground,  among  others,  that  two  persons, 
neither  of  whom  was  a  selectman,  nor  had  been  sworn,  assisted  in 
counting  the  ballots.  The  committee,  in  their  report,  say  "  such 
a  practice  or  custom  should  under  no  circumstances  exist,  it  being 
the  duty  of  the  selectmen  to  receive,  assort  and  count  the  votes 
without  any  assistance  except  that  of  the  town  clerk.  The  ballot- 
box  cannot  be  too  scrupulously  guarded,  even  by  those  officers  to 
whose  supervision  it  is  entrusted,  and  who  are  sworn  to  the  faithful 
performance  of  their  duties."  But  it  was  not  considered  sufficient 
ground  for  unseating  the  member,  and  the  petitioner  was  given 
leave  to  withdraw.  Case  of  Chester,  Mass.  Election  Cases,  Cush- 
ing  S.  &  J.,  664.  Your  committee  do  not  perceive  anj'  difference 
in  principle  between  that  case  and  the  present.  They  concur  in 
censuring  the  practice  of  permitting  unsworn  and  unofficial  persons 
to  handle  and  count  the  ballots.  But  where,  as  in  this  case,  the 
tellers  are  admitted  to  have  been  reputable  men,  and  there  is  no 
charge  of  fraud  or  incompetence  ;  where  their  work  was  gone  over 
and  verified  by  the  selectmen  and  officially  certified  by  them  as 
correct,  we  cannot  consider  the  mere  fact  that  they  assisted  in  the 
count  as  sufficient  ground  for  inferring  error  or  allowing  a  recount. 

In  cases  arising  in  this  house  in  187.5  (^McManus,  ante,  \}.  215  ; 
State  V.  Green,  ante,  p.  226)  substantiall}'  the  same  point  was 
decided  in  accordance  with  the  views  here  expressed. 

The  committee  therefore  recommend  that  the  petitioner  have 
leave  to  withdraw. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1883,  p.  73.] 


374  MASSACHUSETTS   ELECTION   CASES 1853-1885. 


Franklin   Pease,  Petitioner. 

House  Document,  No.  28.     January  26,  1883.     Report  by  George  A.  O. 

Ernst,   Chairman. 

Irregularity  in  Count,  not  avoid  Election.  The  fact  that  the  selectmen  of  a  town, 
following  a  custom  which  had  existed  for  three  or  four  years,  appointed  as  tellers 
three  reputable  persons  to  sort  and  count  the  votes,  who,  without  being  sworn,  per- 
formed that  duty,  the  selectmen  taking  no  part  in  the  count,  but  simply  accepting 
the  result  as  correct,  will  not  invalidate  the  election  or  return  in  that  town. 

Henry  Winn  for  petitioner. 

Harris  C.  Hartwell /or  W.  W.  Foster. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Franklin  Pease,  for  the  seat  as  representative  from  the  fourth 
Franklin  representative  district,   submit  the  following  report :  — 

The  fourth  Franklin  representative  district  is  composed  of  the 
towns  of  Deerfield,  Conway  and  Whatel3\  At  the  election  in 
November,  there  were  three  candidates  for  representative,  —  Mr. 
Foster,  Mr.  AUis,  and  the  petitioner,  Mr.  Pease.  The  vote  of  the 
several  towns  in  said  district  was,  according  to  the  returns,  as 
follows :  — 

T 

Deerfield,     .        .  ... 

Conway, 

Whately,      .        .  ... 

318       318       265       901 

From  the  above  table  it  will  be  seen  that  the  total  vote  of  the 
town  of  Deerfield  was  almost  one-half  of  the  total  vote  of  the 
entire  district  —  nearl}^  equal  to  the  total  combined  vote  of  the 
other  towns.  In  Deerfield,  the  petitioner  received  but  49  votes 
out  of  a  total  of  433.  In  Conway  and  Whately,  taken  together, 
he  received  a  plurality.  He  now  asks  that,  in  consequence  of  an 
alleged  irregularity  on  the  part  of  the  selectmen  of  the  town  of 
Deerfield,  the  entire  vote  of  said  town  shall  be  thrown  out,  and 
that  he  be  declared  elected,  as  having  received  a  plurality  in  the 
remaining  towns. 

In  Ills  petition,  he  also  alleges  that  the  ballots  were  not  sealed 
up  before  the  adjournment  of  the  meeting  at  which  the}'  were  cast, 
as  the  law  directs,  and  that  there  were  various  other  irregularities 
in  the  conduct  of  said  election  in  the  town  of  Deerfield.  But,  at 
the  hearing,  he  expressly  waived  this,  admitting  that  the  ballots 


oBter. 

AUis. 

Pease. 

Total. 

252 

132 

49 

433 

6 

74 

184 

264 

60 

112 

32 

204 

PEASE,    PET.      HOUSE,    1883.  375 

were  sealed,  and  that  the  conduct  of  the  election  was  in  all  respects 
regular,  with  the  following  exception  : 

The  selectmen  of  the  town  of  DeerGeld,  following  a  custom  in 
vogue  there  for  the  past  three  or  four  years,  appointed  three 
tellers  at  the  election,  to  sort  and  count  the  ballots.  These  tellers 
were  admitted  to  be  well  known  and  highly  respected  citizens,  of 
undoubted  integrity ;  but  they  were  not  members  of  the  board  of 
selectmen,  nor  were  thej^  sworn.  They  sat  at  a  table,  some  three 
or  four  feet  distant  from  where  the  selectmen  were  receiving  the 
ballots,  and  from  time  to  time,  during  the  day,  the  ballots  were 
removed  from  the  ballot-box  by  the  selectmen,  and  turned  over  to 
the  tellers,  who  then  sorted  and  counted  them.  No  member  of  the 
board  of  selectmen  at  any  time  personall}"  sorted  or  counted  any 
of  the  ballots,  nor  was  an}'  attempt  made  b}'  them,  or  any  of 
them,  to  verify  the  figures  given  bj'  the  tellers.  They  accepted  the 
result  as  correct,  and  made  their  official  return  in  accordance  there- 
with. No  claim,  however,  was  made  that,  so  far  as  the  petitioner 
is  concerned,  the  count  was  incorrect,  nor  that  he  would,  under 
any  circumstances,  be  entitled  to  more  than  the  forty-nine  votes 
with  which  he  was  credited. 

The  petitioner  was  represented  at  the  hearing  by  counsel,  who 
submitted  a  very  able  and  elaborate  brief,  reviewing  the  prece- 
dents, and  claiming  that,  as  the  selectmen  had  not  followed  the 
strict  letter  of  the  statute,  and  themselves  in  person  "  sorted  and 
counted  the  ballots,"  the  election  in  their  town  was  illegal  and 
void . 

He  admits,  however,  that  although  this  question  has  been  many 
times  before  the  house,  he  "cannot  find  that  the  house  has  ever 
directly  decided  "  it.  By  his  own  showing,  from  the  year  1852 
down  to  the  present  time,  numerous  cases  have  arisen  involving 
the  question  of  the  right  of  selectmen  to  appoint  tellers,  and  com- 
mittees have  administered  orthodox  condemnation  ;  but  not  one 
has  ever  gone  so  far  as  to  hold  that  their  appointment  invalidated 
the  election.  Is  it  not  fair  to  presume,  then,  that  if  it  were  a 
ground  of  avoidance,  some  one  of  the  committees  would  have  so 
held  ?  But  he  admits  that  none  did.  And  he  is  obliged  to  exer- 
cise very  considerable  ingenuity  to  overcome  the  force  of  the  case 
of  Arnold  v.  Chavipney  (arite,  p.  121).  In  this  case,  the  matter 
was  squarel}'  before  the  committee,  and  they  were  urged  to" declare 
the  election  null  and  void.  They  declined  to  pronounce  an  opin- 
ion formally,  and  reported  the  facts  to  the  house.  The  house  subse- 
quently gave  the  petitioner  leave  to  withdraw.  Mr.  Pease,  through 
his  counsel,  claims  that  this  case  is  not  authority,  because  there  is 
nothing  to  show  the  grounds  upon  which  leave  to  withdraw  was 


376  MASSACHUfeTTS   ELECTION   CASES 1853-1885. 

given.  But  the  question  was  distinctly  submitted  to  the  house  for 
its  decision,  and  there  seems  to  be  no  reason  to  doubt  that  such 
decision  was  involved  in  the  vote.  At  all  events,  the  case  has 
since  been  regarded  as  establishing  the  doctrine  that  the  appoint- 
ment of  tellers  is  "an  insufficient  cause  for  avoiding  an  election." 

Your  committee,  in  reaching  a  decision,  have  been  guided,  to  a 
o-reat  degree,  by  the  words  of  Mr.  Justice  Morton,  in  the  case  of 
Elisha  Strong,  petitioner,  20  Pickering,  491,  who,  after  stating 
the  provisions  of  the  statute  touching  the  duties  of  the  selectmen 
(among  them,  at  elections,  "  to  receive,  sort  and  count  the  ballots  ") 
and  town  clerk,  says:  —  "What  shall  be  the  consequence  of  an 
omission  by  the  selectmen  or  town  clerk  to  perform  any  of  these 
prescribed  duties,  and  upon  whom  shall  it  fall?  For  a  wilful 
neglect  of  duty  the  officers  would  undoubtedly  be  liable  to  punish- 
ment ;  but  shall  the  whole  town  be  disfranchised  by  reason  of  the 
fraud  or  negligence  of  their  officers?  This  would  be  punishing 
the  innocent  for  the  faults  of  the  guilty.  It  would  be  more  just, 
and  more  consonant  to  the  genius  and  spirit  of  our  institutions, 
to  inflict  severe  penalties  upon  the  misconduct,  intentional  or  acci- 
dental, of  the  officers,  but  to  receive  the  votes  whenever  they  can 
be  ascertained  with  reasonable  certainty."  In  this  case,  the  result 
of  the  election,  so  far  as  the  petitioner  is  concerned,  can  be  ascer- 
tained, not  onl}^  with  reasonable  but  with  absolute  certainty.  It 
is  evident,  from  the  state  of  the  polls,  and  from  the  evidence  at  the 
hearing,  that  Mr.  Pease  is  not  the  choice  of  the  district,  and  if  a 
new  election  were  to  be  held  he  could  not  be  elected.  His  only 
chance  of  obtaining  a  seat  in  this  house  rests  upon  this  technicality. 

It  is  fair  to  say  that  the  selectmen  of  the  town  of  Deerfield  do 
not  admit  that  their  act  was  illegal.  They  claim  that  they  did 
constructivel}'  sort  and  count  the  ballots,  that  they  had  a  perfect 
legal  right  to  appoint  tellers,  that  it  is  in  accordance  with  precedent 
in  their  own  town,  and  that  the  practice  has  prevailed  for  many 
years  in  most  of  the  large  towns  in  the  Commonweal!  h. 

Whether  they  had  or  had  not  the  legal  right,  your  committee  do 
not  undertake  to  decide.  At  the  worst  theirs  was  an  honest,  even 
if  erroneous,  view  of  the  law.  They  acted  in  perfect  good  faith, 
and  the  petitioner  was  in  no  way  injured  by  their  act.  And  your 
committee  cannot  believe  it  wise  or  just,  simply  because  of  this 
honest  error  (sf  it  is  an  error,)  to  disfranchise  an  entire  town,  and 
seat  a  candidate  who  received  but  49  votes  out  of  433  cast  in  the 
town,  and  but  205  votes  out  of  901  cast  in  the  district. 

They  therefore  recommend  that  the  petitioner  have  leave  to  with- 
draw. 

[The  report  of  the  committee  was  accepted.  H.  J.,  1883,  p.  101.] 


FOSTEE,    PET.       HOUSE,    1883.  377 


WilliajM  W.  Foster,  Petitioner. 

House  Document,  No.  42.  February  2,  1883.  Report  by  Messrs.  Ernst, 
SwiTZEK,  Entwistle,  White,  Peck  and  Webster,  — Mr.  lliCE  dis- 
senting. 

Recount  of  Votes  granted.  Where  a  mistake  was  proved  to  have  been  made  in 
adding  votes  cast  for  representatives,  in  taking  the  figure  11  for  two  ones  (1.1.)  mak- 
ing a  difiFerence  in  the  result  of  nine  votes  against  the  petitioner  (the  election  having 
been  declared  a  tie),  the  votes  will  be  recounted. 

Hakris  C.  Hartwell  for  petitioner. 

Henry  Winn  for  Silas  W.  Allis. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  William  W.  Foster  for  a  recount  of  votes  cast  in  and  for  the  seat 
as  representative  for  the  fourth  Franklin  representative  district, 
having  duly  considered  the  same,  beg  leave  to  make  the  following 
report :  — 

From  the  official  returns  made  by  the  town  clerks  in  said  district, 
it  appeared  that  the  two  leading  candidates  for  representative  had 
each  received  the  same  number  of  votes,  the  election  resultins:  in  a 
lie.  The  petitioner  alleged,  however,  that  the  votes  cast  in  the 
town  of  Deerfield  had  not  been  correctly  counted  and  added.  In 
support  of  this  allegation,  he  produced  the  original  tally-sheet  kept 
by  the  tellers,  who  sorted  and  counted  the  votes  on  election  day 
{vide  Fravkh'u  Pease,  Pet.,  ante,  p.  374),  from  which  it  appeared 
that  an  error  had  been  made  in  adding  the  petitioner's  votes.  On 
tliis  tally-sheet  a  portion  of  the  petitioner's  vote  was-  set  down  thus  : 
11.3.3.1.1.,  etc. 

In  adding,  the  tellers  mistook  the  "  11  "  for  two  ones  (1.1.), 
making  a  difference  in  the  result  of  nine  votes  against  the  peti- 
tioner. Col.  B.  F.  Bridges,  Jr.,  one  of  the  tellers,  testified  that  it 
was  quite  late  in  the  afternoon,  about  dusk,  when  the  additions 
were  made,  and  that  he  had  no  doubt  whatever  that  there  was  a 
mistake. 

Upon  this  evidence,  the  committee  regarded  it  as  its  plain  duty 
to  recount  the  votes,  and  accordingly  summoned  the  town  clerk  of 
Deerfield  to  appear  with  the  ballots.     The  result  is  as  follows:  — 


Foster, 
Allis,  . 
Pease, . 
McClellan, 


Original. 

Recount. 

252 

265 

132 

131 

49 

52 

_ 

1 

378  MASSACHUSETTS   ELECTION   CASES  —  1S53-1885. 

Showing  a  gain  of  thirteen  voles  fur  Foster,  a  loss  of  one  for  Allis, 
and  giving  the  petitioneir,  Mr.  Foster,  the  election  by  fourteen  plu- 
rality. 

The  committee,  therefore,  beg  to  report  the  accompanying  reso- 
lution. 

[The  resolution  declared  that  the  petitioner  was  duly  elected 
representative,  and  entitled  to  the  seat.  The  resolution  was 
adopted.     H.  J.,  1883,  p.  146.] 


HOUSE  — COMMITTEE    ON   ELECTIONS,    1884. 

Messrs.  James  Hewins  of  Medfleld,  Chairman ;  Lorrin  P.  Keyes  of  New 
Marlborough,  Thomas  A.  Oman  of  Pittsfield,  Chester  H.  Gray  of 
Prescott,  George  Elwell  of  Rockport,  Edwin  L.  Burnham  of  West- 
minster and  John  E.  Ward  of  Boston. 


Heney  Augustus  Baker  v.  George  H.  Hunt. 

House   Document,  No.  78.     February  5,   1884.     Report   by  James   Hew- 
ins, Chairman. 

Recount  of  Votes  granted.  Where  the  votes  in  a  town  were  counted  by  the  town 
clerk  alone,  luring  the  election,  until  two-thirds  of  the  whole  were  counted,  and  the 
remainder  were  counted,  some  by  the  clerk  and  some  by  one  of  the  selectmen,  nei- 
ther verifyinf?  the  other's  count,  and  a  mistake  of  ten  votes  was  admitted  to  have 
been  made  in  the  announcement  of  the  vote  for  the  petitioner,  owing,  as  the  clerk  ad- 
mitted in  a  letter  to  a  newspaper,  to  "  hurrying  to  make  the  announcement,"  it  was 
held,  although  no  objection  to  t«he  mode  of  counting  was  made  at  the  meeting,  the 
votes  should  be  recounted  by  the  house  of  representatives. 

Mistake  in  name  of  Candidate.  Votes  written  for  "  Henry  P.  Baker"  and  "  H.  P. 
Baker"  will  Ije  counted  for  Henry  Augustus  Baker,  upon  i)roof,  that  in  the  town 
where  they  were  thrown,  he  was  generally  known  and  called  Henry  Paul  Baker 
(Paul  being  the  name  of  his  deceased  father) ;  and  that  at  the  election  in  that  town, 
two  voters  asked  the  town  clerk  what  Baiter's  name  was,  and  upon  being  told 
*'  Henry  Paul,"  were  seen  to  write  upon  their  ballots. 

Same.  "Votes  for  "  Henry  Baker"  and  "Henry  A.  Baker"  will  be  counted  for 
Henry  Augustus  Baker,  although  a  Henry  Atistin  Baker  lived  in  the  same  town  and 
was  eligible  to  election,  and  although  the  local  newspaper  by  mistake  published  the 
name  of  Henry  Austin  Baker  as  one  of  the  candidates  at  the  nominating  caucus,  and 
in  the  same  item  twice  gave  the  name  as  Henry  A.  Baker,  — \t  appearing  that  the 


BAKER  V.    HUNT.   HOUSE,  18.84.  379 

latter  was  not  a  candidate  for  election,  and  that  Henry  Augustus  Baker  was  the 
regular  candidate  of  his  party. 

Saine.  Evidence  of  Intention.  A  voter  will  not  be  allowed  to  testify  for  whom  he 
intended  to  vote  by  his  ballot. 

Qualijication  of  Voters.  Abatement  of  Tax.  The  assessors  of  a  town  have  no 
power  to  abate  the  tax  of  a  voter,  so  as  to  affect  his  right  of  suffrage,  except  upon  his 
application,  and  with  his  full  knowledge  and  consent,  and  any  attempt  to  abate  it 
without  such  consent  will  be  ineffectual. 

Same.  The  assessors  of  a  town  assessed  a  voter  there,  nearly  80  years  of  age,  for 
the  year  1882,  and  afterwards,  without  any  application  from  him,  abated  the  tax  on 
account  of  his  age,  infirmity  and  poverty,  supposing  that  he  could  still  remain  a 
voter,  and  did  not  assess  him  in  1883.  His  name  remained  on  the  voting-list  until 
jiist  before  the  election  in  1883,  when  although  it  was  upon  the  posted  list,  a  pencil 
was  drawn  thi'ough  his  name  on  the  list  in  the  hands  of  the  selectmen,  with  a  note 
that  the  reason  was  that  he  was  not  taxed.  On  the  Saturday  before  the  election,  he 
went  to  the  selectmen's  room  and  paid  his  poll  tax  for  1882  to  the  town  collector, 
taking  a  receipt,  and  then  requested  the  selectmen  to  put  his  name  on  the  voting-list, 
which  they  declined  to  do ;  —  it  was  held  that  his  name  sjaould  have  been  placed  on 
the  voting  list. 

Effect  of  refusing  to  register  qualified  Voter.  Where  a  qualified  voter  has  been 
improperly  refused  the  right  to  register  or  vote,  and  has  done  everything  in  his 
power  to  exercise  that  right,  —  and  his  vote,  if  it  had  been  received,  would  have 
changed  the  declared  result  of  the  election,  the  election  must  be  declared  void. 

Chas.  Theo.  Russell,  in..,  for  petitioner. 
Abraham  B.  Coffin  for  sitting  member. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Henry  Augustus  Baker  for  a  recount  of  the  votes  cast  in  the 
town  of  Rockland  for  representative  from  the  ninth  Plymouth  dis- 
trict, and  for  the  seat  as  such  representative,  have  considered  the 
same  and  report  as  follows  :  — 

The  ninth  Plymouth  district  is  composed  of  the  towns  of  Han- 
over and  Rockland.  At  the  election  in  November  last,  there  were 
two  candidates  for  representative,  George  H.  Hunt,  the  sitting 
member,  and  the  petitioner,  both  of  Rockland.  The  vote  in  said 
towns  was,  according  to  the  returns,  as  follows  :  — 


Rockland, 
Hanover, 


Hunt. 

Baker. 

454 

538 

229 

134 

683 

672 

.    1 

, 

.     1 

, 

.     1 

. 

.     1 

Henry  Baker  had 

Henry  P.  Baker  had 

H.  P.  Baker  had 

Henry  A.  Baker  of  Rockland, 

The  petitioner  claimed  that  the  four  votes  for  Henry,  Henry  P., 
H.  P.,  and  Henry  A.,  Baker,  were  intended  and  should  be  counted 
for  him.     He  also  claimed  that  four  votes  were  illegally  cast  for 


380  MASSACHUSETTS    ELECTION   CASES — 1853-1885. 

Mr.  Hunt ;  the  voters  not  having  resided  for  six  months  in  the 
town  in  which  the}-  voted.  It  will  be  seen  that,  admitting  the 
petitioner's  allegations  to  be  true,  he  was  still  three  votes  behind 
the  silting  member,  and  he  relied  upon  a  recount  of  the  votes  of 
Kockland  to  change  the  result.  The  selectmen  of  Eockland  were 
Charles  Bearce,  William  Forbes  and  Daniel  G.  Wheeler.  The 
town  clerk  was  Ezekiel  R.  Studley.  Mr.  Studley  had  been  town 
clerk  for  about  eleven  years,  and  had  assisted  in  counting  the  bal- 
lots at  State  elections  during  that  time.  He  occupied  a  table 
behind  the  selectmen,  and  as  soon  as  a  ballot  box  was  full  he  took 
the  ballots,  counted  them,  and  then  put  them  into  a  large  paper 
bag,  where  they  remained  until  delivered  to  your  committee.  Mr. 
Studley  counted  alone  until  a  greater  part,  two-thirds  at  least,  of 
the  ballots  had  been  counted.  Then  Mr.  Wheeler  came  to  the 
table  and  both  counted,  but  neither  counted  any  ballots  which  the 
other  had  counted.  Mr.  Bearce  stood  by  the  ballot  box  all  day. 
Mr.  Forbes  and  Mr.  Wheeler  attended  to  the  check-list  until  the 
press  of  voting  was  over,  and  then  Mr.  Wheeler  went  to  the  table 
with  Mr.  Studley  and  left  Mr.  Forbes  to  attend  to  the  check-list 
alone.  No  objection  was  made  b}^  any  one  during  the  day  to  the 
manner  in  which  the  votes  were  being  counted.  Mr.  Bearce  and 
Mr.  Forbes  both  testified  that  nothing  occurred  at  the  election 
which  led  them  to  think  that  there  had  been  a  mistake,  or  that  the 
ballots  were  not  correctly  counted.  The  vote  was  declared  by  Mr. 
Studley  within  twenty  minutes  after  the  polls  were  closed.  In 
announcing  the  vote  for  Mr.  Baker  he  made  a  mistake  of  ten  votes, 
giving  it  as  528  instead  of  538.  In  a  letter  to  the  "  Rockland 
Standard,"  he  frankly  acknowledged  the  mistake,  and  said  it  was 
made  "/w  hurrying  to  make  the  announcement." 

It  is  well  established  by  the  precedents  of  the  house  that  the 
mere  fact  of  there  being  but  a  few  votes  between  the  number 
thrown  for  the  contestant  and  the  number  thrown  for  the  sitting 
member  will  not  authorize  a  recount.  Bart  v.  Babbitt.,  ante.,  p.  174  ; 
Austin  V.  Siveet,  ante,  p.  189  ;  Greene  v.  Bridgman,  ante.  p.  216  ; 
Slate  V.  Green,  ante,  p.  226  ;  Taylor  v.  Carney,  ante,  p.  228  ;  Morse 
V.  Lonergan,  ante,  p.  288  ;  3IcGibbons  v.  Walden,  ante,  p.  289. 

Section  26  of  chapter  7  of  the  Public  Statutes  provides  that  the 
votes  in  elections  for  national,  state,  count}'^  and  district  officers 
shall  be  received,  sorted  and  counted  by  the  selectmen.  It  was  there- 
fore contrary  to  the  terms  of  said  section  for  the  selectmen  of 
Rockland  to  allow  the  town  clerk  to  count  the  votes ;  and  your 
committee,  following  the  example  of  their  predecessors,  desire  to 
put  upon  record  their  condemnation  of  such  a  course  of  proceed- 
ing.    They  believe  that  such  an  important  matter  as  the  counting 


BAKER   V.    HUNT.       HOUSE,    1884.  381 

of  votes  and  the  determinalion  of  the  result  of  an  election  has  been 
most  wiseh'  placed  in  the  hands  of  the  selectmen,  who,  by  reason 
of  their  judgment  and  experience,  have  been  placed  in  charge  of 
the  prudential  affairs  of  the  town,  and  who  are  sworn  to  the  faith- 
ful discharge  of  their  duties.  But  however  unlawful  or  irregular 
u  ma}'  bo  for  the  selectmen  to  allow  other  persons  to  count  votes, 
such  illegality  or  irregularity  has  never  been  held  to  invalidate  the 
election.  Strong's  case,  20  Pick.,  484;  Arnold  v.  Champney, 
ante,  p.  121  ;  Pease,  Pet.,  ante,  p.  374.  Coming  next  to  the  ques- 
tion of  granting  a  recount  on  the  ground  of  the  irregularities  above 
mentioned,  your  committee  carefully  examined  the  cases  upon 
that  point.  , 

In  3Ionroe  v.  Cummings,  ante,  p.  212,  it  appeared  that  about 
two-thirds  of  the  votes  cast  for  representatives  were  counted  during  the 
meeting  by  the  clerk  of  the  board  of  selectmen  and  that  no  one  verified 
his  count.  The  petitioner  asked  for  a  recount.  A  majority  of 
the  committee  reported  leave  to  withdraw.  The  minority  were  of 
opinion  that  there  should  be  a  recount.  The  house  sustained  the 
minority  and  ordered  a  recount.  In  McManus,  Pet.,  ante,  p.  215, 
a  recount  was  asked  for  on  the  ground  that  a  Mr.  Mason,  who  was 
not  one  of  the  selectmen,  assisted  in  counting  the  votes.  It 
appeared  that  all  of  the  selectmen  were  present ;  that  one  of  them 
counted  all  of  the  ballots  ;  that  they  were  again  counted  by  Mr. 
Mason,  and  that  the  result  was  the  same.  The  committee  reported 
leave  to  withdraw,  which  was  accepted  by  the  house.  lu  Slate  v. 
Green,  ante,  p.  226,  there  were  two  representatives  for  the  dis- 
trict. One  of  the  sitting  members  received  nineteen  votes,  and 
the  other  only  six  votes  more  than  the  contestant.  The  votes 
were  counted  by  two  of  the  voters  who  were  invited  by  the  select- 
men to  perform  that  service.  No  objection  to  that  manner  of 
counting  was  made  by  any  one  during  the  election.  The  com- 
mittee held  that  there  was  no  evidence  which  led  them  to  doubt 
that  the  votes  were  correctly  counted  aud  returned,  and  reported 
leave  to  withdraw,  which  was  accepted  by  the  house.  In  Samp- 
son v.  Waterman,  ante,  p.  253,  there  was  a  recount,  but  it  does  not 
appear  from  the  report  upon  what  ground  it  was  granted. 

The  next  is  Stimpson  v.  Breed,  ante,  p.  257.  Your  committee 
have  not  been  able  to  reconcile  this  case  with  the  others.  Here, 
the  clerks  of  the  two  precincts  making  up  the  district  (ward  3  in 
the  city  of  Lynn  and  the  town  of  Swampscott) ,  failed  to  meet  at 
noon  on  the  day  following  the  election,  to  make  up  tlieir  return 
and  certificates,  as  required  by  law,  and  did  not  meet  until 
Thursday  evening  following.  The  committee  held  that  this 
irregularity  did  not  invalidate  the  election,  but  that  the  return  and 


382  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

certificate  were  invalid  and  must  be  set  aside  ;  and  they  granted  a 
recount  on  that  ground.     This  irregularity  was   not  set  forth   in 
the  petition,  but  appeared  incidentally.     In  Hayne^  \ .  IlilUs,  ante, 
p.  300,  the  same  point  was  raised  in  the  petition.     The  town  clerks 
not  only  failed  to  meet  on  the  day  following  the  election  to  make 
up  their  return  and  certificates,  but  never  met  at  all.     The  com- 
mittee said  that  they  saw  no  ground  to  question  the  correctness  of 
the  conclusions  arrived  at  in  Stimpsoyi  v.  Breed,  to  wit,  that  the 
return    and    certificate  are  invalid    and  must  be  set  aside ;  but 
intimated,  without  deciding   it,  that  the  proper  way  to  ascertain 
the  result  of  the  election  was  to  examine  and  compare  the  records 
of  the  election  in  each  town,  and  not  to  recount  the   votes.     The 
district  comprised  the  towns  of   Maynard,   Sudbury,  Weston   and 
"Wayland.     The  records  of  the  votes    of   Maynard,  Sudbury   and 
AVeston  were  not  disputed,  and  were  taken  by  the  committee,     In 
respect  to  the  town  of  Wayland,  tlie  committee  say,  "  having  the 
ballots  before  them,  they  decided   upon  other  grounds  to  recount 
them  "     This  case,  therefore,  is  not  authority  for  recounting  votes 
solely  on  the  ground  of  irregularity  in  the  proceedings  at  or  after 
the  election.    See  also,  Hillman  v.  Flanders,  ante,  p.  338,  where  the 
town  clerks  failed  to  meet,  and  where  the  committee,  following 
the  suggestion  in  Ilaynes  v.  Hillis,  canvassed  the  district,  taking 
the  votes   as    recorded    in    the    several  towns.     The   committee 
recounted  the  votes  in  one  of  the  towns,  Tisbury,  but  upon  other 
grounds,  as  will  appear   below.     There  was  a  case  in  1878  {Kim- 
hall  V.  TLlton,  ante,  p.  315  in  which  a  recount  was  granted  without 
any  reason  being  shown    therefor,  but  the   chairman   protested 
against  the  action  of  the  committee. 

In  Hillman  v.  Flanders,  cited  supra,  the  petitioner,  among  other 
things  prayed  for  a  recount  of  the  votes  in  the  town  of  Tisbury, 
on  account  of  informality  in  the  method  of  counting  tlie  same. 
The  committee  say  :  "  /it  appeared  from  the  evidence  that  the  ballots 
in  that  town  were  divided  into  four  different  bundles,  and  that  each 
bundle  was  counted  by  a  different  person,  and  that  no  one  man  verified 
the  count.  Your  committee,  considering  this  a  somewhat  careless 
way  of  counting,  proceeded  to  count  the  votes  of  said  town."  In  Ames 
V.  Beebe,  ante.  p.  346  it  appeared  that  the  town  clerk  and  one  of  the 
selectmen  had  charge  of  counting  the  ballots  ;  that  the  boxes  were 
opened  and  the  ballots  removed  five  times  during  the  day,  and 
counted  each  lime  by  both  parties,  each  verifying  the  count  of 
the  other.  Held  :  that  the  votes  were  carefully  and  correctly 
counted.  In  Harris  v.  Richardson,  ante,  p.  372,  two  persons,  neither 
of  whom  was  a  selectman,  were  present  and  assisted  in  the  sorting 
and  counting  of  the  ballots  ;  but  it  also  appeared  that  all  the  votes 


BAKER   V.    HUNT.      HOUSE,    1884.  383 

were  counted  by  the  selectmen.  Leave  to  withdraw  was  reported, 
and  report  accepted  by  the  house. 

Applying  the  rules  laid  down  in  the  cases  above  cited  to  the 
present  case,  your  committee  unanimously  voted  to  grant  the 
petitioner  a  recount.  The  manner  of  sorting  and  conntino-  the 
votes  in  the  town  of  Rockland  was  such,  in  the  opinion  of  your 
committee,  as  to  leave  a  reasonable  doubt  as  to  the  accuracy  of 
the  count.  The  votes  should  have  been  sorted  and  counted  by 
the  selectmen  ;  but  that  irregularity,  in  the  opinion  of  your  com- 
mittee, has  no  bearing  upon  the  question  of  a  recount  any  further 
than  this, — that  there  is  a  presumption  in  favor  of  the  accuracy 
of  the  constituted  oflScers  whose  duty  it  is,  und^r  the  statute,  to 
count  the  votes,  while  thei'e  is  no  such  presumption  in  the  case  of 
other  persons.  They  granted  a  recount  for  the  reason  that  none 
of  the  votes  were  counted  by  more  than  one  person. 

It  appeared,  too,  that  most  of  the  counting  was  done  during  the 
excitement  and  bustle  of  the  meeting,  and  while  the  voting  was 
going  on  so  fast  that  it  required  two  of  the  selectmen  to  attend 
to  the  check  list.  Mr.  Studley  admitted  that  he  made  a  mistake 
of  ten  votes  against  the  petitioner  in  declaring  the  vote,  and  sa^-s 
that  he  made  the  mistake  "  m  hurrying  to  make  the  announce- 
ment." If  Mr.  Studley  and  Mr.  Wheeler  had  gone  over  each 
other's  work,  and  the  result  had  remained  unchanged,  a  very 
different  case  would  have  been  presented.  In  every  case  where 
a  recount  has  been  refused  there  has  been  this  check  upon  a 
mistake. 

Monroe  v.  Cummings  and  Ilillman  v  Flanrlers,  cited  supra, 
are  direct  authorities  in  support  of  the  decision  of  your  committee. 

Upon  recounting  the  votes  of  Rockland,  your  committee  found 
that  the  town  clerk  had  made  a  mistake  of  nineteen  votes  against 
the  petitioner  and  eleven  votes  against  the  sitting  member,  making 
the  vote  of  the  petitioner  557  instead  of  538,  and  the  vote  of  the 
sitting  member  465  instead  of  454.  By  agreement  of  both  parties, 
your  committee  then  recounted  the  votes  of  Hanover,  which  were 
counted  by  the  selectmen,  and  found  no  mistake.  By  the  recount, 
therefore,  the  vote  of  the  district  was  as  follows : — 


In  Rockland. 
"    Hanover, 


In  Rockland,  Henry  Baker  of  Rockland  had    . 

In  Hanover,  Henry  P.  Baker  of  Rockland  had 

H.  P.  Baker 
"  "  Henry  A.  Baker  " 


Hunt. 

Baker, 

465 

657 

229 

134 

694 

691 

• 

1 

. 

•     -L 

• 

•      J- 

• 

•      X 

384  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

In  Rocklaud  there  were  three  votes  for  Mr.  Hunt,  namely, 
those  of  Ellsworth  Cobbett,  Lewis  W.  Cobbett  and  Asa  H.  Josselyn, 
which  were  challenged  and  sealed  up  in  separate  envelopes.  The 
petitioner  claimed  that  these  votes  were  illegal  and  ought  not  to 
be  counted,  on  the  ground  that  none  of  said  persons  had  resided 
in  said  Rockland  for  six  months  next  preceding  the  election. 
He  also  claimed  that  the  vote  of  Albert  W.  Bailey  of  Hanover, 
who  testified  that  he  voted  for  Mr.  Hunt,  ought  not  to  be  counted, 
for  the  reason  that  he  had  not  resided  in  said  Hanover  for  six 
months  next  preceding  the  election.  Mr.  Hunt  claimed  that  three 
persons  in  Hanover  voted  for  Mr.  Baker,  namely,  Patrick  Cooley, 
Michael  McEnroe  and  Barney  Dagin,  who  could  not  read  and 
write  ;  and  that  in  Rockland,  Ezra  Arnold,  a  legal  voter,  would 
have  voted  for  Mr.  Hunt,  but  was  unlawfully  refused  registration. 

With  reference  to  the  votes  for  Henry  P.  and  H.  P  Baker,  it 
appeared  in  evidence  that  the  petitioner  was  generally  known  and 
called  by  the  name  of  Henry  Paul  Baker  in  Hanover,  where  said 
votes  were  cast. 

Mr.  Fred  M.  Harrub,  a  member  of  the  house,  who  resides  in 
Plympton,  which  is  about  thirteen  miles  from  Rockland,  testified 
that  he  had  always  known  the  petitioner  as  Henry  Paul  Baker,  and 
so  called  him,  using  both  names,  "  Henry  Paul." 

The  petitioner  testified  that  he  was  forty-three  j^ears  old,  and 
was  born  and  had  alwaj^s  lived  in  Rockland ;  that  his  father's  name 
was  Paul  Baker ;  that  he,  the  petitioner,  was  sometimes  called 
Henry  Paul,  or  Hen.  Paul,  and  sometimes  Henry  Baker,  or  Hen. 
Baker ;  that  he  was  well  known  in  Hanover,  and  in  that  town  was 
oftener  called  Henry  Paul  than  Henr}'  Baker. 

Bernard  Damon,  town  clerk  of  Hanover,  testified  that  two  men 
came  up  to  his  desk  at  the  election  and  asked  what  Mr.  Baker's 
name  was  ;  that  he  answered,  "  Henry  Paul ;  "  and  that  he  then 
saw  them  write  upon  their  ballots.  He  also  testified  that  he  sup- 
posed the  petitioner's  name  was  Henry  Paul  Baker,  and  that  he 
was  so  known  and  called  in  Hanover. 

Isaac  G.  Stetson,  one  of  the  selectmen  of  Hanover,  testified 
that  until  recently  he  had  alwa3's  known  the  petitioner  as  Henry 
Paul  Baker. 

Urban  W.  Gushing  of  Rockland,  testified  that  he  cast  the 
"  Henry  Baker "  ballot,  and  that  he  was  personally  acquainted 
with  the  petitioner.  He  also  testified  that  he  intended  to  vote  for 
the  petitioner,  but  your  committee  rejected  that  testimony  as  incom- 
petent.    (See  Hood  v.  Potter,  ante,  p.  217.) 

It  also  appeared  that  there  was  a  Henry  Austin  Baker,  who  was 
a  voter  in  Rockland,  and   that  the  "  Rockland  Standard,"  which 


BAKER   V.    HUNT.       HOUSE,   1884.  385 

had,  at  that  time,  a  circulation  of  about  thirty-five  copies  in  Han- 
over, where  the  "Henry  A.  Baker"  vote  was  cast,  in  its  issue  of 
November  3cl,  1883,  by  mistake  gave  the  name  of  Henry  Austin 
Baker  as  one  of  the  candidates  at  the  democratic  caucus.  After- 
wards in  the  same  item  it  twice  gave  the  name  as  Henrj'  A.  Baker. 
It  did  not  appear  that  any  voter  in  Hanover  actually  saw  this  erro- 
neous newspaper  item. 

Henry  Austin  Baker  was  present  before  3'Our  committee  and 
testified  that  he  was  a  democrat,  and  a  voter  in  Rockland  at  the 
last  election,  but  that  he  was  not  then,  and  had  never  been,  a  can- 
didate for  any  office ;  that  no  one  spoke  to  him  or  of  him  as  a  can- 
didate, and  that  he  received  no  votes  ;  that  he  was  not  present  at 
the  caucus,  and  was  not  in  town  at  the  time ;  and  tbat  he  had  no 
particular  friends  in  Hanover. 

Charles  H.  Ellis,  who  cast  the  "  Henry  A.  Baker  "  ballot,  identi- 
fied it,  and  testified  that  he  himself  wrote  that  name  upon  it,  and 
that  he  was  personally  acquainted  with  the  petitioner.  He  also 
testified  that  he  intended  to  vote  for  the  petitioner,  but  3'our  com- 
mittee rejected  that  testimony. 

Andrew  Shanahan  testified  that  he  had  resided  in  Rockland  about 
thirty  years,  and  had  known  the  petitioner  about  fourteen  3'ears ; 
that  he  was  a  member  of  the  democratic  town  committee,  and  can- 
vassed for  the  petitioner  before  the  last  election  ;  that  the  principal 
candidates  at  the  caucus  were  the  petitioner,  Chester  M.  Perry, 
John  W.  Cameron,  E.  T.  Wright  and  T.  H.  B.  Whiting ;  and  that 
there  was  no  candidate  b}'  the  name  of  Baker  except  the  petitioner. 
He  also  testified  that  while  he  was  canvassing  for  the  petitioner,  he 
(the  petitioner)  was  generally  spoken  of  as  Henry  Paul,  or  Hen. 
Paul. 

Upon  the  above  evidence  your  committee  were  of  the  opinion 
that  all  of  said  votes  were  intended,  and  should  be  counted,  for  the 
petitioner,  though  in  the  case  of  the  "Henry  A.  Baker"  vote  they 
believe  that  thej^  have  gone  a  step  farther  than  any  of  their  prede- 
cessors have  been  called  upon  to  go.  Pratt's  case,  Mass.  Cont. 
Elec.  Cases,  Cashing,  S.  &  J.  236  :  Cliapin  v.  Snoiv,  ante,  p.  96  ; 
Wright  v.  Hooper,  ante,  p.  100  ;  Coggsivell  v.  McNeil,  ante,  p.  108  ; 
Arnold  v.  Cliampney,  ante,  p.  121 ;  Hohhs  v.  Bartholmesz,  ante, 
p.  182 ;  Hood  v.  Potter,  ante,  p.  217 ;  Sampson  v.  Waterman, 
ante,  p.  253  ;  Merriam  v.  Bnfchelder,  ante,  p.  294 ;  Macomher  v. 
Fisher,  ante,  p.  311 ;  Cushing's  Law  and  Practice  of  Legislative 
Assemblies,  p.  41. 

Your  committee  next  considered  the  votes  of  Patrick  Cooley, 
Michael  McEnroe  and  Barney  Dagin,  who  were  alleged  to  have 
voted  for  the  petitioner,  and  to  have  been  unable  to  read  and 


386  MASSACHUSETTS    ELECTIOX   CASES — 1853-1885. 

write  ;  and  here  your  committee  were  clearly  of  opinion  that  the 
allegations  were  not  proved.  There  was  some  evidence  tending 
to  show  that  Cooley  could  not  write,  but  there  was  no  competent 
evidence  as  to  which  candidate  for  representative  he  voted  for. 

The  next  question  considered  was  that  of  the  votes  of  Lewis 
W.  Cobbett,  Ellsworth  Cobbett  and  Asa  H.  Josselyn,  of  whom  it 
was  alleo-ed  that  thev  had  not  resided  in  Eockland  for  six  months 
next  preceding  the  election.  Though  the  evidence  was  somewhat 
conflicting,  your  committee,  after  carefully  considering  all  the  cir- 
cumstances of  each  case,,  were  of  the  opinion  that  each  of  said 
persons  had  resided  in  said  Eockland  for  six  months  next  pre- 
ceding the  election,  and  was  a  legal  and  qualifled  voter  in  said 
town.  They  also  found,  upon  the  evidence,  that  Albert  W.  Bailey 
had  resided  in  Hanover  for  six  months  next  preceding  the 
election,  and  was  a  legal  and  qualified  voter  in  said  town. 

Allowing  these  four  votes  to  Mr.  Hunt,  the  sitting  member,  as 
they  were  counted  by  the  town  authorities,  and  giving  Mr.  Baker 
the  four  votes  for  Henry  P.,  H.  P.,  Henry,  and  Henry  A.,  Baker, 
the  vote  in  the  district  would  stand  as  follows :  — 


Rockland, 
Hanover, 


Hunt. 

Baker, 

465 

561 

229 

134 

694  695 


This  brought  your  committee  to  the  consideration  of  the  only 
remaining  question  in  the  case,  namely,  whether  Ezra  Arnold  of 
Rockland  was  entitled  to  vote  at  the  last  election  and  would  have 
voted  for  Mr.  Hunt ;  and  whether  he  was  unlawfully  prevented 
from  voting. 

Mr.  Arnold  testified  that  he  was  eighty  jT-ears  old  last  mouth  ; 
that  he  had  lived  in  Rockland  thirty  years  ;  that  he  had  always  voted 
the  republican  ticket  since  that  party  was  formed,  and  before  that 
time  voted  the  whig  ticket ;  that  he  had  always  been  taxed  in 
Rockland  up  to  last  May  ;  that  about  a  year  ago  last  spring  the 
chairman  of  the  selectmen  met  him  in  the  street  and  told  him  that 
his  property  was  not  valued  at  one  thousand  dollars,  and  was 
exempt ;  that  he  asked  the  chairman  about  a  poll  tax,  and  was 
told  that  he  was  not  obliged  to  pay  a  poll  tax  to  vote  ;  that  he 
told  the  chairman  that  he  would  rather  pay  a  poll  tax  for  the 
privilege  of  voting  than  not  to  vote,  and  that  the  chairman  an- 
swered that  it  would  make  no  difference,  that  he  could  vote  just 
the  same  ;  that  he  never  asked  to  have  a  tax  abated  and  never 
applied  to  the  assessors  of  Rockland  to  be  exempted  from  taxa- 


BAKER    V.    HUNT.       HOUSE,    1884.  387 

tion  ;  that  his  name  had  been  upon  the  voting  list  until  the  last 
election ;  that  just  before  the  election  he  was  told  that  his  name 
was  not  on  the  list  in  the  hands  of  the  selectmen  (it  appeared  in 
evidence  that  his  name  was  on  the  posted  voting  lists  of  Rock- 
land, and  that  it  remained  on  said  lists  up  to  the  election  and 
afterwards,  and  that  said  lists  were  dated  Oct.  17,  1883)  ;  that 
when  he  learned  that  his  name  was  not  on  the  list  which  the 
selectmen  had,  he  was  advised  by  several  persons  to  pay  his  poll 
tax  for  1882  ;  that  he  went  to  the  selectmen  the  Saturday  night 
before  election  ;  that  they  were  assembled  in  the  town  hall  regis- 
tering voters ;  that  he  then  and  there,  in  the  selectmen's  room, 
paid  his  poll  tax  for  1882  to  the  collector,  and  took  a  recemt ; 
that  he  took  the  receipt  to  the  selectmen  and  asked  to  have 
his  name  put  on  the  voting  list ;  that  they  told  him  he  could  not 
have  it  put  on  ;  that  had  his  name  been  on  the  list  he  should  have 
voted  for  Mr.  Hunt ;  that  he  desired  to  vote  for  Mr.  Hunt  and 
should  have  voted  the  straight  republican  ticket ;  that  he  did 
evervthino;  he  knew  he  could  do  in  order  to  vote ;  but  that  the 
selectmen  would  not  put  his  name  on  the  list ;  that  he  did  not 
know  why  his  name  was  not  on  the  list ;  that  he  never  gave  any 
order  to  have  it  taken  off,  and  expressed  a  desire  to  pay  a  poll 
tax  rather  than  lose  his  vote. 

Charles  Bearce,  chairman  of  the  selectmen  of  Rockland,  testifled 
that  he  knew  Mr.  Arnold,  who  had  resided  in  Rockland  a  long 
time ;  that  his  name  was  still  on  tiie  voting  list  with  his  (Mr. 
Bearce's)  pencil  drawn  through  it ;  that  in  the  book  containing  the 
list  of  voters,  which  was  produced  before  your  committee,  there  is 
his  name,  "Ezra  Arnold,"  and  under  the  column  marked  "when 
ceased  to  be  a  voter"  is  "1883,"  and  under  the  column-  marked 
"why  ceased  to  be  a  voter"  is  "not  taxed";  that  he  inferred 
from  that  entry  that  Mr.  Arnold  paid  a  tax  in  1881  ;  that  Mr. 
Arnold  came  in  the  evening  of  the  Saturday  before  election  and 
asked  if  he  could  be  registered  ;  that  the  selectmen  told  him  that 
it  was  too  late,  that  he  had  not  paid  any  tax  for  two  years,  and 
that  if  he  had  let  them  know  before,  he  could  have  registered.  He 
also  testified  that  Mr.  Arnold  was  taxed  in  1882,  but  that  the  tax 
was  abated  ;  that  he  was  exempt  by  law  before  that ;  that  they 
exempted  him  in  1882  and  1883,  not  thinking  they  were  to  deprive 
him  of  his  vote  ;  that  he  (Mr.  Bearce)  met  him  in  the  street  two 
or  three  years  ago,  and  told  him  that  he  had  got  good  news  for 
him  ;  that  he  said,  "  You  are  exempt,  and  have  never  got  to  pay 
any  more  taxes  ; "  that  the  thought  of  preventing  Mr.  Arnold  from 
voting  never  entered  his  mind. 

Daniel  G.  Wheeler,  one  of  the  selectmen  of  Rockland,  testified 


388  MASSACHUSETTS    ELECTION    CASES  —  1853-1885. 

that  Mr.  Arnold  was  assessed  in  1882  and  the  tax  abated ;  that  it 
was  abated  on  the  ground  that  he  was  exempt  from  taxation,  under 
the  statute,  by  reason  of  age,  infirmity  and  poverty  ;  that  they  were 
acting  under  the  supposition  that  a  person  so  exempt  was  entitled 
to  vote,  and  so  informed  Mr.  Arnold  ;  that  he  was  assessed  in  1882 
because  they  supposed  it  was  necessary  to  assess  him  in  order  to 
keep  him  upon  the  voting  list ;  that  the  selectmen  decided  that  he 
was  exempt,  and  that  he  could  vote  without  paying  a  tax ;  that 
Mr.  Arnold  came  to  them  the  Saturday  night  before  election  ;  that 
some  one  had  told  him  he  would  have  to  pay  a  tax  in  order  to  vote  ; 
that  he  came  with  his  money  in  his  hand,  and  wanted  to  pay  his 
tax  so  that  he  could  vote  ;  that  the  selectmen  told  him  that  there 
was  no  tax  against  him  ;  that  the}^  had  no  idea  at  that  time  that  he 
was  taxed  in  1882,  but  upon  searching  the  records  afterwards  they 
found  that  he  was  so  taxed,  and  that  it  was  abated  ;  that  if  they 
had  known  this  they  would  have  allowed  him  to  pay  a  portion  of 
that  tax  and  to  vote,  but  not  being  taxed  in  1883  the}^  got  the  idea 
that  he  was  not  taxed  in  1882  ;  that  he  wanted  his  name  put  on 
the  voting  list,  and  asked  repeatedly  to  have  it  done  ;  that  he 
urged  to  have  it  done,  and  said  he  didn't  see  why  thej^  couldn't  do 
it ;  that  he  said  he  wanted  to  be  taxed  and  to  vote  ;  that  they  told 
him  they  didn't  see  how  they  could  allow  him  to  vote.  He  also 
testified  that  Mr.  Arnold  had  voted  every  year  till  last  year ;  that 
he  had  never  asked  to  have  his  tax  abated  ;  and  that  he  had  always 
said  he  wanted  to  retain  his  right  to  vote  ;  that  there  might  some- 
thing come  up  he  should  feel  anxious  about,  and  he  wanted  to 
retain  his  right. 

Upon  the  above,  which  is  the  substance  of  the  evidence,  your 
committee  were  clearly  of  the  opinion  that  Mr.  Arnold  was  entitled 
to  vote  at  the  last  election,  and  was  unlawfully  prevented  from 
voting ;  and  that  if  he  had  been  allowed  to  vote,  he  would  have 
voted  for  Mr.  Hunt,  the  sitting  member. 

Judge  McCrary,  in  his  "American  Law  of  Elections,"  says,  on 
p.  48  :  "A  case  may  occur  where  a  portion  of  the  legal  voters 
have,  without  their  fault,  and  in  spite  of  due  dihgence  on  their 
part,  been  denied  the  privilege  of  registration.  In  such  a  case,  if 
the  voter  was  otherwise  qualified,  and  is  clearly  shown  to  have 
performed  all  the  acts  required  of  him  bj^  the  law,  and  to  have 
been  denied  registration  bj-  the  wrongful  act  of  the  registering 
officer,  it  would  seem  a  very  unjust  thing  to  deny  him  the  right  to 
vote.  In  elections  for  State  officers,  however,  under  a  constitution 
or  statute  which  imperatively  requires  registration  as  a  qualification 
for  voting,  it  may  be  that  the  voter's  only  remedy  would  be  found 
in  an  action  against  the  registering  officer  for  damages.      Wlien, 


BAKER   V.    HUNT.       HOUSE,    1884.  389 

hoicever,  a  portion  of  the  voters  of  a  given  precinct  are  thus  unjusthj 
denied  the  privilege  of  registration,  and  another  portion  are  duly 
registered  and  permitted  to  vote,  no  doubt  is  entertained  but  that  the 
entire  poll  should  be  rejected,  if  the  votes  of  the  former  class  cannot 
be  counted,  and  they  are  sufficiently  numerous  to  affect  the  result." 
It  appears  that  Mr.  Ai-uold  was  only  assessed  in  May,  1882,  which 
was  within  two  years  next  preceding  the  election.     It  is  true  that 
the  selectmen  attempted   to  abate  the  tax,  but  in  the  opinion  of 
your  committee  they  had  no  power  to  abate  it  so  as  to  affect  Mr. 
Arnold's  constitutional  right  of  suffrage,  except  upon  his  applica- 
tion, and  with  his  full  knowledge  and  consent.*     No  such  applica- 
tion was  made.     The  tax  was  never  legally  abated,  and  is  still  in 
full  force.     It  is  absurd  to  say  that  a  voter  can  be  disfranchised 
by  the  unsolicited  act  of  a  board  of  selectmen  in  abating  his  tax. 
In  the  case  of  Weston,  Mass.  Cont.  Elec.  Cases,  Gushing,  S.  &  J. 
p.  67,  where  a  member  returned  was  elected  bj'  a  majority  of  one 
vote,  and  it  appeared  that  several  persons,  legally  qualified,  who 
were  present  and  desired  to  vote  at  the  election,  were  prohibited 
b}'   the   selectmen   from   doing   so,   the   election   was   held   void, 
although  it  did  not  appear  that  an}'  more  than  one  of  the  rejected 
voters  would  have  voted  against  the  sitting  member,  if  they  had 
been  permitted  to  vote. 

The  rejection  of  a  legal  vote  will  not  invalidate  an  election  unless 
the  result  would  have  been  changed  by  its  reception.  Shrewsbury, 
Mass.  Cont.  Elec.  Cases,  Cushing,  S.  &  J.  275  ;  HopJcinton,  lb. 
654  ;  Chester,  lb.  6G4. ;  Trustees  of  Blandford  v.  Gibbs,  2  Cush. 
39. 

As  Mr.  Arnold's  vote,  if  cast,  would  have  made  a  tie,  and  so 
changed  the  result  of  the  election,  3-our  committee  uuanimousl}'^ 
recommend  that  the  seat  held  by  Mr.  Hunt  be  declared  vacant, 
and  the}'  report  the  accompanying  resolution. 

[The  resolution  declared  the  seat  vacant  and  the  resolution  was 
adopted.  H.  J.,  1884,  p.  158.  A  precept  was  issued  for  a  new 
election.  At  that  election  the  petitioner  was  elected,  and  qualified 
and  took  the  seat.] 

*  [On  the  question  of  liability  of  assessors  to  voter  for  omission  to  tax  him,  so  that 
he  loses  his  right  to  vote  at  an  election,  see,  Griffin  v.  Rising,  11  Met.  339.] 


390  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 


SENATE  — 1885. 


George  A.  Collins  v.  William  Cogswell. 

Special  Committee.  —  Hon.  Augustus  E.  Scott,  Hon.  Frederick  L.  Bur- 
den and  Hon.  Henry  F.  Naphen. 

Senate  Document,  No.   31.     February  6,  1885.     Report  by  Mr.  Scott, 
Chairman,  —  Mr.  Naphen,  dissenting. 

Recount  of  Votes  refused.  It  is  well  settled  that  in  the  absence  of  proof  or  evi- 
dence of  fraud  in  the  acts  of  the  selectmen,  or  of  illegality  in  the  manner  of  calling, 
holding,  or  conducting  the  meeting  at  which  the  election  is  held,  or  in  the  manner 
of  ascertaining  the  result,  unless  the  petitioner  shows  a  reasonable  ground  for  sup- 
posing an  error  in  the  count,  a  recount  of  votes  by  the  senate  will  not  be  made. 

Same.  The  fact  that  the  votes  of  a  city,  composing  part  of  the  district,  were  re- 
counted by  the  aldermen  upon  petition,  and  bj'  the  recount  the  originally  declared 
result  of  the  election  was  changed,  will  not  justify  a  recount  by  the  senate  of  votes 
in  the  towns  in  the  district,  in  the  absence  of  doubt  regarding  the  accuracy  of  the 
town  returns. 

Same.  The  fact  that  in  a  town,  the  actual  counting  of  tiie  votes  was  done  by  only 
one  selectman,  selected  for  that  duty,  the  other  selectmen  participating  in  the  sort- 
ing and  adding  of  the  votes,  will  not,  in  the  absence  of  doubt  regarding  the  accuracy 
of  the  count,  justify  a  recount  of  the  votes  by  the  senate. 

John  R.  Baldwin  and  P.  J.  McCusker  for  petitioner. 

Henry  P.  Moulton  for  silting  member. 

The  Special  Committee  to  whom  was  referred  the  petition  of 
George  A.  Collins  for  the  seat  as  senator  from  the  second  Essex 
senatorif\l  district,  now  occupied  by  William  Cogswell,  having  met 
the  parties  and  heard  tlieir  evidence  and  the  arguments  of  counsel, 
submit  tlie  following  report :  — 

The  said  district  comprises  the  cit^'  of  Salem  and  the  towns  of 
Marblehead,  Peabody  and  Lynnfield. 

The  petition  alleged,  and  it  was  not  disputed,  that  the  vote  for 
senator  at  tlie  annual  state  election  was  declared  as  follows  :  — 

For  George  A.  Collins, 3,593 

William  Cogswell 3,565 

J.  A.  Osborn, 384 

giving  said  Collins  a  plurality  of  28  votes  ;  that  upon  the  petition 
of  said  Cogswell,  under  the  provisions  of  §  31  of  chap.  299  of 
the  Acts  of  1884,  a  recount  of  the  votes  cast  in  the  city  of  Salem 


COLLINS   V.    COGSWELL.       SENATE,    1885.  391 

was  had,  resulting  in  a  gain  of  forty-five  for  Cogswell  and  a  loss  of 
eight  to  the  petitioner,  giving  said  Cogswell  a  plurality  of  twenty- 
seven  votes  and  reversing  the  result  as  at  first  declared. 

The  petition  asked  for  a  recount  and  alleged  as  reasons  therefor, 
that  in  Marblehead,  Peabody  and  Lynnfield,  certain  votes  cast  for 
the  petitioner  were  not  counted  at  all,  or  were  erroneously  counted 
for  Cogswell  or  for  Osborn,  and  that  votes  bearing  the  name  of  the 
petitioner  were  counted  for  Cogswell ;  that  sundry  votes  illegally 
cast  were  counted  for  Cogswell,  and  that  in  the  town  of  Lynnfield 
there  was  illegal  voting. 

No  evidence  whatever  was  offered  in  support  of  these  allegations, 
and  at  the  final  hearing  they  were  withdrawn. 

It  was  admitted  that  the  result  as  declared  by  the  board  of  alder- 
men of  Salem  was  correct,  and  that  no  evidence  had  been  offered 
tending  to  show  that  the  result  of  the  count  as  declared  in  the 
towns  of  Marblehead  and  Lynnfield  was  incorrect. 

The  petitioner  rested  his  case  upon  the  method  adopted  bj'  the 
selectmen  of  Peabod}'  for  counting  the  votes,  and  upon  the  justice 
of  his  request  for  a  recount  in  the  remainder  of  the  district,  the 
partial  recount  having  reversed  the  result  as  declared  at  the  elec- 
tion. 

Relative  to  counting  the  votes  in  Peabody  the  following  was  sub- 
mitted by  the  counsel  of  the  parties  as  an  agreed  statement  of 
facts  :  — 

"  Early  in  the  afternoon  the  selectmen  and  town  clerk  unani- 
mously agreed  that  it  was  advisable  to  remove  the  ballots  from  the 
box  and  proceed  to  a  count.  The  ballots  were  removed,  ami  Mr. 
Preston  of  the  board  of  selectmen  and  Mr.  Poor  of  the  same  board 
and  also  the  town  clerk  proceeded  to  sort  the  votes.  The  manner  of 
sorting  was  as  follows :  —  All  the  straight  tickets  of  each  party 
were  .put  by  themselves  in  separate  boxes,  and  all  the  scratched 
tickets  of  all  parties  were  put  in  one  box.  After  proceeding  with 
sorting  the  tickets  in  the  manner  above  described  for  awhile,  Mr. 
Preston  besjan  to  count  the  ballots  sorted  and  Mr.  Poor  continued 
sorting. 

''  Mr.  Preston,  in  counting,  examined  each  ticket  and  verified  the 
sorting  done  by  himself  and  Mr.  Poor  ;  he  then  counted  the  tickets 
into  separate  packages,  putting  the  number  in  each  package  on  the 
'  back  of  the  outside  ballot  of  that  package,  and  gave  the  same  to 
Mr.  Poor,  who  copied  and  added  the  numbers  so  given  him  by  Mr. 
Preston.  The  straight  tickets  were  nearly  counted  at  the  close  of 
the  polls  at  quarter  past  four,  the  other  three  selectmen  attending 
to  the  check-list  in  the  meantime.     After  closing  the  polls  Mr. 


392  MASSACHUSETTS   ELECTION    CASES — 1853-1885. 

Preston  opened  the  box  containing  the  scratched  tickets,  and  pro- 
ceeded to  read  each  name  on  all  the  tickets  taken  from  the  box. 
As  he  read  the  name  of  a  candidate  one  of  the  tellers  made  a  mark 
against  the  name  read  on  a  slip  of  paper  prepared  for  that  purpose, 
and  the  marks  set  against  the  names  of  each  candidate  were  added 
to  the  regular  vote  for  that  candidate  by  the  selectmen  before  the 
vote  was  declared.  Some  of  the  tellers  were  members  of  the  board 
of  selectmen.  The  whole  board  were  engaged  in  the  business  of 
the  count  after  the  polls  closed. 

"  Peabody  is  a  town  of  more  than  six  hundred  voters.  The 
names  checked,  votes  cast,  and  the  number  registered  by  the 
ballot  box  agreed." 

The  sitting  member  holds  his  seat  by  virtue  of  a  certificate  issued 
by  the  governor  and  council,  from  the  returns  made  by  the  officers 
required  by  law  to  make  them.  Prima  facie,  his  title  to  the  seat  is 
good,  and  he  should  not  be  disturbed  or  annoyed  in  his  possession 
of  it  for  frivolous  reasons. 

It  is  a  well  settled  principle,  that  in  the  absence  of  any  proof 
or  evidence  of  fraud  in  the  acts  of  the  selectmen,  or  of  illegality 
m  the  manner  of  calling,  holding  or  conducting  the  meeting  at 
which  the  election  is  held,  or  in  the  manner  of  ascertaining  the 
result,  unless  the  petitioner  shows  a  reasonable  ground  for  sup- 
posing an  error  in  the  count,  a  recount  should  not  be  granted. 

From  the  agreed  statement  and  other  evidence  the  committee 
are  satisfied  that  the  sorting  and  counting  of  the  votes  cast  at  the 
election  in  Peabody  were  carefully  done. 

All  the  selectmen  participated  in  it,  and  although  it  appears 
that  the  actual  counting  was  done  by  only  one  man,  he  was  the 
person  selected  by  the  board  for  the  purpose,  and  he  was 
undoubtedly  fit  and  competent  for  the  duty.  There  is  no  evi- 
dence that  the  votes  cast  for  senator  were  not  counted  in  the 
same  careful  manner  as  those  cast  for  the  other  officers,  and 
the  committee  see  no  reason  to  doubt  the  accuracy  of  the  result. 

The  statute  says  the  sorting  and  counting  shall  be  done  by  the 
selectmen.  No  arbitrary  rule  can  be  laid  down  for  their  guidance. 
Different  boards  will  adopt  different  methods,  and  the  presump- 
tion is  that  as  a  rule  each  board  will  follow  the  plan  which  can  be 
relied  on  for  accuracy. 

As  to  the  claim  that  a  recount  of  the  votes  cast  in  the  towns  in 
the  district  should  be  granted  because  a  partial  recount  was  had 
under  the  law,  the  committee  feel  that  the  statute  wisely  provides 
for  a  recount  in  cities  in  certain  cases  and  not  in  towns,  and  that 
a  recount  should  be  granted   in   a  case  like  this,  only  for  the 


SPLAINE    V.    McGAHEY.       SENATE,    1885.  303 

reasons  that  one  would  be  granted  in  a  district  composed  wholly 
of  towns.  The  fact  that  a  recount  of  a  portion  of  a  district  has 
been  made  by  a  tribunal  provided  by  law  for  the  purpose,  in  the 
absence  of  any  doubt  of  the  accuracy  of  the  returns  of  the 
other  portion  of  the  district,  is  no  reason  for  granting  the  peti- 
tion. 

The  committee  are  aware  that  in  a  case  similar  to  this,  that  of 
Kimball  \.  Tilton  {ante,  p.  315),  a  recount  was  granted.  But  in 
that  case,  the  committee  seem  to  have  utterly  disregarded  the 
principles  that  have  guided  other  committees,  and  the  views  of  a 
dissenting  member  emphatically  enunciating  some  of  these  prin- 
ciples are  appended  to  the  report. 

In  view  of  the  frequency  of  petitions  of  disappointed  candi- 
dates for  recounts,  often  relying  only  on  the  good  nature  of 
committees  to  afford  them  one  more  chance,  and  wasting  much 
valuable  time  of  the  legislature,  the  committee  feel  that  the  case 
cited  is  not  a  safe  precedent  to  follow,  and  that  the  principle  on 
which  recounts  should  be  granted  should  be  rigidly  adhered  to. 

The  committee  recommend  that  the  petitioner  have  leave  to 
withdraw. 

Mr.  Naphen  of  the  committee,  while  substantially  agreeing 
with  the  majority  as  to  the  facts,  is  unable  to  concur  in  the  con- 
clusions, 

[The  report  of  the  committee  was  accepted.  S.  J.,  1885, 
p.  138.] 


Henry  Splaine  v.  Alexander  McGahey. 

Special   Committee.  —  Hon.  Augustus  E.  Scott,  Hon.  Wit.t.tam  R.   Ses- 
sions and  Hon.  Frederick  L.  Burden. 

Senate  Document,  No.  34.     February  9,  18S5.     Report  bj^  all  the  Com- 
mittee. 

Election  declared  void.  Where  the  petitioner  was  declared  elected  upon  the  ward 
returns  by  a  plurality  of  five  votes,  and,  upon  a  recount  by  the  aldermen,  the  sitting 
member  was  returned  by  a  plurality  of  five  votes,  — and  the  committee  in  recount- 
ing the  votes  were  unable  from  irregularities  and  errors  on  the  face  of  many  of  the 
ballots  to  ascertain  how  the  aldermen  reached  that  result,  and  it  was  proved  that 
there  had  been  fraudulent  voting,  and  irregularities  at  the  election,  so  that  it  was  im- 


394  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

possible  to  determine  who  had  received  a  plurality  of  legal  votes,  the  election  was 
declared  void. 

George  A.  Bruce  for  petit io7ier. 

Charles  J.  Noyes  for  sitting  member. 

The  Special  Committee,  to  whom  was  referred  the  petition  of 
Hem-y  Splaine  for  the  seat  as  senator  from  the  third  Suffolk  sena- 
torial district^  now  occu-pied  by  Alexander  B.  McGahey,  submit 
the  following  report :  — 

The  district  comprises  wards  6,  7  and  8  of  the  city  of  Boston, 
divided  into  sixteen  voting  precincts. 

The  contest  has  no  political  bearing,  both  the  petitioner  and  sit- 
ting member  belonging  to  the  democratic  party  ;  and  the  number 
of  ballots  thrown  for  the  republican  and  other  candidates  was  so 
small  they  do  not  affect  the  result,  and  need  not  be  considered  in 
this  report. 

The  count  by  the  election  officers,  as  declared  at  the  election 


gave 


McGahey, 2,495  votes. 

Splaine, 2,600      " 

On  the  petition  of  McGahey,  under  the  statute,  a  recount  by 
the  board  of  aldermen  was  had,  which  gave 

Splaine, 2,519  votes. 

McGahey, 2,524      " 

thus  exactly  reversing  the  result. 

The  whole  number  of  ballots  thrown  for  all  candidates  for  sen- 
ator was  found  by  the  election  officers  to  be  5,740  ;  by  the  board 
of  aldermen,  5,797. 

Upon  evidence  offered  b^'  the  petitioner,  tending  to  discredit  the 
accuracy  of  the  count  by  the  aldermen,  —  the  counsel  for  the  sit- 
ting member  not  objecting,  —  the  committee  decided  to  recount  the 
ballots. 

The  result  gave  for  all  candidates  the  same  number  found 
by  the  board  of  aldermen,  5,797  ;  but  in  what  manner  the  alder- 
men arrived  at  their  result  as  between  the  contesting  parties,  the 
committee  cannot  determine. 

The  committee  found  fifty-four  ballots  challenged  for  different 
causes,  and  a  large  number  of  others  with  irregularities  of  various 
kinds  in  the  vote  for  senator  on  their  face,  showing  evidence  of 
fraud  on  ignorant  voters,  and  making  it  impossible  to  deLermine 
their  intent.     Many  of  the  challenges  were  for  the  reason  that  the 


SPLAINE    V.    McGAHEY.       SENATE,    1885.  395 

names  had  been  voted  on  before,  and   the   cbeck-Usts  showed  a 
large  number  of  names  that  were  checked  twice. 

The  committee  gave  several  extended  hearings,  and  heard  the 
testimony  of  a  large  number  of  witnesses  produced  by  both  parties, 
bearing  on  the  question  of  fraud  in  the  election. 

One  of  the  witnesses  was  brought  from  jail,  where  he  was  await- 
ing sentence,  on  conviction  for  fraudulent  voting  in  one  of  the 
precincts  of  this  district. 

It  was  shown  that  the  inspector  of  elections  in  that  precinct  had 
also  been  convicted  for  complicity  in  these  frauds,  and  it  was  also 
shown  that  he  had  been  previously  convicted  of  highway  robbery 
and  sentenced  to  confinement  in  the  State  prison  for  three  years. 

Although  several  of  the  witnesses  were  members  or  ex-members 
of  the  Boston  city  government,  or  in  the  employ  of  the  city,  yet 
much  of  the  testimony  was  utterly  unreliable. 

Drunkenness  prevailed  at  the  election  to  a  disgraceful  extent ; 
both  the  petitioner  and  sitting  member  were  shown  to  be  proprie- 
tors of  drinking  saloons,  which  were,  to  a  greater  or  less  extent, 
the  resort  of  vote  distributors  and  other  friends  of  the  candidates, 
although  there  is  no  direct  evidence  that  either  of  them  did  any- 
thing personally  to  influence  votes,  or  to  connect  them  with  these 
frauds. 

Several  illegal  votes  were  shown,  beyond  a  doubt,  to  have  been 
thrown,  and  there  was  evidence  tending  to  show  that  the  fraud  was 
of  much  greater  extent,  comprising  votes  by  men  who  did  not 
reside  in  the  district,  votes  on  names  of  men  who  had  died  since 
registering,  and  on  names  of  others  who  did  not  go  to  tlie  polls. 

The  committee  have  striven  hard  to  sift  the  contradictory  and 
unreliable  evidence  and  to  arrive  at  a  satisfactory  conclusion,  but 
have  failed  to  do  so. 

They  feel  it  to  be  their  duty  to  state  the  facts  and  to  report  that 
it  is  impossible  to  determine  which  of  the  parties  is  elected. 

They  therefore  recommend  the  adoption  of  the  accompanying 
resolution. 

[The  resolution  declared  the  seat  of  the  sitting  member  vacant. 
The  report  of  the  committee  was  accepted.     S.  J.,  1885,  p.  142.] 


39G  MASSACHUSETTS   EUECTION   CASES — 1853-1885. 


HOUSE  — COMMITTEE  ON  ELECTIONS,  1885. 

Messrs.  Jesse  M.  Gove  of  Boston,  Chairman;  John  H.  Towne  of  Tops- 
field,  John  J.  Madden  of  Boston,  Metcalf  J.  Smith  of  Micldlefleld, 
Franiv  J.  DoNAHOE  of  Lowell,  Clement  P.  Dozois  of  Holliston  and 
William  H.  Flynn  of  Somerville. 


Julius  C.  Chappelle  v.  Charles  A.  Prince, 

House   Document,    No.   15.     January  20,   1885.     Report  by    Jesse    M. 

Gove,  Chairman. 

Obliteration  on  Ballot.    Where  on  the  ballot,  the  title  to  the  ofBce  for  which  a  per 
son  is  a  canditlatc,viz. :  that  of  representative,  is  wholly  or  partially  obliterated  by 
a  paster  for  senator  pasted  on  the  ballot,  the  ballot  will  be  counted  as  a  vote  for  rep- 
resentative for  the  person  named,  — the  presumption  being  that  the  voter  intended 
to  vote  for  such  person  for  representative  and  not  to  have  his  vote  inoperative. 

George  A.  O.  YiBMsr  for  petitioner. 

The  Committee  on  Elections,  to  whom  was  referred  the  petition 
of  Julius  C.  Chappelle  for  the  seat  now  occupied  by  Charles  Albert 
Prince,  have  counted  the  ballots  cast  for  Messrs.  Prince  and  Chap- 
pelle in  the  ninth  Suffolk  district,  and  find  them  as  follows :  for 
Prince,  813  ;  for  Chappelle,  824.  Of  the  votes  cast  for  Mr.  Prince, 
your  committee  found  that  on  three  ballots  the  title  to  the  office  for 
which  he  was  a  candidate  was  wholly  or  partially  obliterated  by  the 
' '  sticker  "  used  by  the  voter  for  senator.  Of  the  votes  cast  for  Mr. 
Chappelle,  on  56  of  them  the  title  to  the  office  for  which  he  was  a 
candidate  was  wholly  or  partially  obliterated  by  the  "  sticker  "  used 
by  the  voter  for  senator.  But  your  committee  found  that  it  was 
the  intention  of  the  voter  to  cast  his  ballot  for  representative  for 
the  person  whose  name  appeared  upon  the  ballot  and  not  to  have 
his  vote  inoperative  for  representative  ;  and  your  committee  are 
supported  in  that  view  of  the  case  b}'  the  communication  they  have 
received  from  Mr.  Prince,*  the  sitting  member.     Your  committee, 

*  [In  the  communication  referred  to,  Mr.  Prince  said :  —  "I  have  taken  the  seat 
because  it  was  proper  that  the  district  should  be  fully  represented  at  the  outset,  and 
because  I  was  creditably  informed  that  I  had  the  greater  number  on  the  fullest  count. 
It  is  my  desire,  however,  should  your  committee  recount  the  votes,  that  every  ballot 
rejected  for  tliis  technicality  should  be  counted,  to  the  end  that  the  intention  of  the 
voter  may  prevail.  I  should  perhaps  also  add  that  I  should  not  feel  justified  in 
keeping  my  seat  if  awarded  to  mc  on  such  a  technicality."] 


CHAPPELLE   V.    PEINCE.      HOUSE,    1885.  397 

therefore,  find  that  Mr.  Cbappelle  received  11  votes  for  representa- 
tive from  the  ninth  Suffolk  district  more  than  were  cast  for  Mr. 
Prince,  and  report  the  accompanying  resolution. 

[The  resolution  declared  that  the  petitioner  was  entitled  to  the 
seat.  The  report  of  the  committee  was  accepted,  and  the  resolu- 
tion was  adopted.  H.  J.,  1885,  p.  57.  Mr.  Chappelle  was  qualified 
and  took  the  seat.     lb.,  p.  58.] 


SUPPLEMENT. 


I. -OPINIONS    GIVEN    BY    THE     SUPREME    JUDICIAL     COURT 
RELATING    TO    ELECTIONS.      1853-1885. 

II.  — DIGEST  OF  DECISIONS  OF  THE  SUPREME  JUDICIAL 
COURT  RELATING  TO  INHABITANCY  AND  RESIDENCE 
(1   MASS.    TO    138    MASS.    REPS.    INCLUSIVE.) 

III. -MESSAGE  OF  GOVERNOR  ANDREW  TO  THE  SENATE, 
APRIL  7,  1862,  VETOING  THE  ACT  OF  1862,  ENTITLED 
"AN  ACT  TO  DIVIDE  THE  COMMONWEALTH  INTO  DIS- 
TRICTS FOR  THE  CHOICE  OF  REPRESENTATIVES  IN 
THE  CONGRESS  OF  THE  UNITED  STATES,"  AND  RE- 
QUIRING THE  PEOPLE  ■  OF  EACH  DISTRICT  TO  LIMIT 
THEIR  CHOICE  FOR  SUCH  REPRESENTATIVE  TO  AN  IN- 
HABITANT   OF    THE    DISTRICT.    ' 


[399] 


SUPPLEMENT   I. 


OPINIONS  GIVEN  BY  THE  SUPREME  JUDICIAL  COURT  KELAT- 
ING  TO   ELECTIONS.     1853-1885. 


Addison  Waite  v.  John  T.  Woodavard  and  others. 

10  CusH.  143  (1852). 

It  is  competent  for  selectmen,  although  not  their  duty,  to  add  the  name  of  a  legal 
voter  to  the  voter's  list,  after  the  voting  commences;  but.they  cannot,  during  such 
time,  hold  a  regular  meeting  for  the  correction  of  the  list. 

Action  on  the  case  against  the  selectmen  of  Hubbarclston,  for 
wrongfully  refusing  to  place  the  plaintiffs  name  upon  the  list  of 
voters  in  said  town,  and  refusing  to  admit  him  to  vote,  at  the  an- 
nual election  in  November,  1850,  and  at  the  election  of  a  repre- 
sentative in  Congress  in  January,  1851. 

The  plaintiff  offered  to  show  that  the  defendants,  after  the  open- 
ing of  said  meetings,  and  the  list  of  voters  had  been  read,  made 
proclamation  that  all  persons  who  claimed  a  right  to  vote,  and 
whose  names  had  not  been  inserted  upon  the  list  of  voters,  might 
come  forward,  and  the  selectmen  would  hear  and  decide  upon  their 
claims  :  That  at  the  town  meeting  in  January,  the  plaintiff  did  go 
to  the  selectmen  before  the  voting  began,  and  as  soon  as  the  pro- 
clamation was  made,  and  requested  to  have  his  name  inserted  on 
the  list,  and  offered  proofs  of  his  qualification  :  That  the  select- 
men of  Hubbardston  have  uniformly,  for  many  years,  heard  and 
examined  the  claims  of  persons  claiming  a  right  to  vote,  and  have 
acted  upon  the  same,  and  when  found  qualified,  have  placed  their 
names  upon  the  lists  of  voters  after  the  meetings  had  been  opened, 
and  after  the}'  had  begun  to  receive  votes  :  That  at  both  elections, 
the  defendants  adopted  that  course  in  respect  to  other  persons  than 
the  plaintiff,  and  placed  their  names  on  the  list,  and  allowed  them 
to  vote  at  the  first  meeting,  both  before  and  after  the  plaintiff  had 
made  his  application,  and  at  the  second  meeting  after  he  had  made 
his  application  to  them  :     That  at  the  times  mentioned  in  the  plain- 

401 


402  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

tiff's  declaration,  the  plaintiff  made  a  claim  upon  defendants  that 
they  should  place  his  name  upon  the  list  of  voters,  and  that  he 
might  be  admitted  to  vote  :  That  the^^  consented  to  hear  his  claim, 
and  the  proofs  he  offered  :  Tliat  they  heard  the  same  and  adjudged 
thereon,  and  wrongfully  refused  his  application  aforesaid. 

But  the  presiding  judge  of  the  court  of  common  pleas,  Merrick, 
J.,  refused  to  admit  the  evidence,  and  ruled  that  the  proposed  evi- 
dence would  not,  if  true,  sustain  the  action,  and  that  it  was  not 
competent  for  selectmen  to  enter  names  upon  the  list  of  voters  after 
the  opening  of  the  meeting.  Whereupon  a  verdict  was  taken  for 
the  defendants  and  the  plaintiff  excepted  to  the  ruUng. 

E.  Washburn  for  the  plaintiff. 

B.  F.  Thomas  and  G.  Swan /or  the  defendants. 

CuSHixo,  J. :  This  record  presents  but  one  question  for  our 
determination,  namely,  whether  the  court  below  ruled  correctly  in 
saying  it  was  not  competent  for  selectmen  to  admit  names  on  the 
voting  list  after  the  opening  of  the  meeting,  that  is,  pending  the 
election. 

It  is  a  question  of  the  true  construction  of  the  provisions  of  the 
Rev.  Sts.,  c.  3  &  4,  and  of  the  statute  of  1839,  c.  42,  and  especially 
the  following  paragraphs  : 

"  The  selectmen  shall  be  in  session,  at  some  convenient  place, 
for  a  reasonable  time,  within  forty-eight  hours  next  preceding  all 
meetings  for  the  elections  of  any  of  the  officers  aforesaid,  for  the 
purpose  of  receiving  evidence  of  the  qualifications  of  persons, 
claiming  a  right  to  vote  in  such  elections,  and  of  correcting  the 
lists  of  voters  ;  and  such  session  shall  be  holden  for  one  hour  at 
least,  on  the  day  of  such  election,  and  before  the  opening  of  the 
meeting. 

"  In  any  town,  where  the  number  of  qualified  voters  shall  exceed 
one  thousand,  such  session  of  the  selectmen  shall  be  holden  on  the 
day  immediately  preceding  the  meeting,  and,  for  as  much  longer 
time,  previous  to  said  day,  as  the  selectmen  shall  judge  necessary 
for  the  purpose  aforesaid."  * 

We  agree  at  once  that  the  statute  does  not  make  it  the  duty  of 
the  selectmen  of  a  town  to  hold  a  selectmen's  meeting,  for  the  pur- 
pose of  receiving  evidence  of  the  qualifications  of  voters,  after  the 
opening  of  the  polls  for  the  given  election.  Nor  does  the  reason 
of  the  thing  allow  us  to  come  to  any  other  conclusion.  After  the 
voting  has  commenced,  the  selectmen  are  sufficiently  occupied  with 
their  specific  duty  of  the  time,  as  presiding  officers  at  the  election 
and  canvassers  of  the  votes, 

•  This  statute  has  since  been  repealed.    See  Pub.  Sts.,  ch.  6,  ^§  23,  24,  27. 


OPINIONS    OF    THE    COUET.  403 

Of  course,  it  cannot  be  the  right  of  any  person  to  demand  of  the 
selectmen  then  to  hold  a  meeting  for  the  purpose  of  correcting  the 
voting  lists  in  his  favor.  He  might  have  applied  at  the  time  which 
Ihe  statute  points  out,  that  is,  before  the  commencement  of  the 
town  meeting. 

The  conclusion  implies,  and  the  argument  of  convenience  goes 
the  length  of  showing,  that  it  is  not  the  right  of  the  selectmen,  after 
the  opening  of  the  town  meeting,  to  hold  a  regular  judicial  meet- 
ing of  their  own  for  the  general  purpose  of  hearing  and  determin- 
ing applications  for  the  correction  of  the  poll  lists. 

These  opinions  are  confirmed  by  the  reasoning  of  the  court  in  the 
case  of  Capen  v.  Foster,  12  Pick.  492,  and  are  not  contradicted  b}' 
anything  in  the  subsequent  cases  of  Gates  v.  Neal.,  23  Pick.  308, 
and  Blanchard  v.  Stearns,  5  Met.  302. 

But  we  have  heretofore  decided  that  selectmen  have  author- 
ity, even  after  the  opening  of  the  town  meeting,  to  strike  from  the 
list  of  A^oters  the  name  of  a  person,  who  is  not  a  legal  voter.  Hum- 
phrey V.  Kingman,  5  Met.  162.  And  we  have  also  decided  that 
selectmen  may  add  a  name  after  the  close  of  their  stated  meeting  for 
the  correction  of  the  lists,  though  in  anticipation  of  the  town  meeting. 
Bacon  V.  Benchley,  2  Cush.  100.  We  feel  constrained  to  tliink  that 
they  have  the  power  to  do  this,  that  is,  to  correct  manifest  error  which 
may  come  to  their  knowledge,  either  by  expunging  a  name  or  add- 
ing one,  as  justice  may  require,  even  after  the  opening  of  the  town 
meeting. 

While,  therefore,  we  think  it  is  not  competent  for  the  selectmen 
to  hold  a  regular  meeting  for  the  purpose  of  correcting  the  lists 
after  the  opening  of  the  town  meeting,  yet  we  are  unable  to  see 
anything  in  the  statute  which  renders  it  incompetent  for  them,  on 
their  official  responsibility,  to  admit  a  name  after  that  time  ;  their 
action  in  the  premises,  in  such  a  contingenc}',  being  limited  by  the 
exigency  of  subordination  to  tlieir  paramount  duty  as  the  presid- 
ing officers  of  the  meeting. 

We  speak  of  course  in  regard  to  towns  only,  without  going  into 
consideration  here,  of  what  the  law  may  be  in  this  respect,  in  the 
very  different  case  of  cities,  where,  as  they  are  organized  in  this 
Commonwealth,  the  municipal  officers,  whose  duty  it  is  to  correct 
the  voting  lists,  are  not  inspectors  of  the  election. 

Upon  this  view  of  the  subject,  a  new  trial  is  granted,  to  take 

place  in  this  court. 

Exceiitions  sustained. 


404  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 


John  H.  Harris  v.  Granville  Whitcomb  and  others. 

4  Gray,  433  (1855) . 

In  an  action  against  selectmen  for  refusing  to  receive  the  vote  of  an  inhabitant  of 
the  town,  parol  evidence  that  the  plaintiff's  name  was  on  the  voting  list  is  inadmissi- 
ble without  first  giving  notice  to  produce  the  list. 

The  fact  that  a  person's  name  is  on  the  voting  list  when  the  meeting  is  opened 
and  the  voting  commences  \s  prima  facie  evidence  of  his  right  to  vote. 

The  remedy  of  one  whose  name  is  erased  from  the  voting  list  by  the  selectmen 
before  the  voting  commences,  and  whose  vote,  when  offered,  is  refused  by  them,  is 
an  action  against  them  for  erasing  his  name,  and  not  an  action  for  refusing  his  vote. 

Action  of  tort  against  the  three  selectmen  of  Boxborough. 
Writ  dated  November  9,  1852.  The  plaintiff  in  his  declaration 
alleged  "that  he  was  a  citizen  of  Boxborough  in  said  count^s  and 
was  by  law  entitled  to  vote  for  electors  of  president  and  vice-presi- 
dent of  the  United  States  in  said  Boxborough  ;  that  the  defendants 
were  the  selectmen  of  said  Boxborough,  legally  chosen  and  quali- 
fied, and  bound  by  law  to  receive  the  vote  of  said  plaintiff  for  said 
electors  ;  that  the  said  plaintiff,  on  the  day  of  the  presidential  elec- 
tion in  November  last,  his  name  being  duly  entered  on  the  check 
list  in  said  Boxborough,  offered  and  tendered  to  said  defendants 
his  vote,  according  to  law,  and  that  the  defendants  refused  to 
receive  the  same  wrongfully  and  knowingly." 

At  the  trial  at  April  term  1854,  before  Metcalf,  J.,  a  witness, 
called  by  the  plaintiff,  testified  that  he  was  a  distributor  of  envelopes 
for  votes  at  said  meeting  ;  (which  was  held  on  the  1st  of  November, 
1852)  ;  that,  just  before  the  voting  began,  he  saw  Taylor,  the  chair- 
man of  the  selectmen,  draw  a  pencil  across  the  plaintiff's  name  on 
the  two  lists  of  voters  which  the  selectmen  had,  one  for  their  own 
use,  and  the  other  for  the  use  of  the  distributors  ;  that  the  plaintiff's 
name  was  on  the  several  lists  of  voters  which  were  posted  up  about 
the  town  before  the  meeting  ;  and  that  he  did  not  know  what  became 
of  any  of  the  lists.  The  defendants  objected  to  this  parol  testi- 
mony, because  notice  had  not  been  given  to  them  to  produce  either 
of  the  lists,  and  because  no  evidence  had  been  introduced  to  show 
that  they  were  lost.     But  the  objection  was  overruled. 

The  plaintiff  introduced  evidence  tending  to  show  that  he  resided 
in  the  town  of  Boxborough  for  six  months  next  preceding  the  time 
of  voting,  and  had  paid  within  two  yeai's  a  count}'  tax  assessed 
upon  him  in  that  town  ;  that  he  offered  his  vote  to  the  selectmen 
at  the  meeting,  and  at  the  proper  time,  and  claimed  a  right  to  vote  ; 


OPINIONS   OF   THE    COURT.  405 

that  one  of  the  distributors  of  envelopes  interposed,  and  inquired 
of  tiie  selectmen  if  tliey  sliould  refuse  the  plaintiff's  vote,  and  that 
Taylor,  the  chairman,  answered  :  "  Yes,  if  his  name  has  been  erased 
from  the  list ;  "  that  the  plaintiff  again  offered  his  vote,  and  claimed 
tiie  right  of  putting  it  into  the  ballot  box  ;  that  the  selectmen  then 
consulted  together,  and  Whitcomb,  one  of  the  defendants,  said  : 
"If  there  was  no  other  ground  for  refusing  his  vote,  he  is  a  fugi- 
tive slave,  and  that  would  be  sufficient ;  "  that  Ta3dor,  the  chairman, 
then  said  that  the  plaintiff  was  not  a  citizen  of  Boxborough,  and 
his  vote  was  refused.  It  did  not  appear  that  the  third  defendant 
did  or  said  anything  about  the  plaintiff's  voting,  but  it  appeared 
that  he  was  present  during  this  consultation  and  when  the  remark 
of  the  chairman  was  made. 

The  defendants  moved  the  court  to  nonsuit  the  plaintiff,  "  1st, 
Because  the  evidence  did  not  support  the  declaration  ;  2d,  Because 
the  plaintiff  offered  no  other  evidence,  besides  that  herein  reported, 
of  his  qualifications  as  a  voter  ;  3d,  That  the  assertion  of  Whitcomb, 
that  the  plaintiff  was  a  fugitive  slave,  threw  upon  the  plaintiff  the 
burden  of  showing  that  he  was  not  such  fugitive  ;  4th,  That  there 
was  no  evidence  against  the  defendants  other  than  Taylor  and 
Whitcomb."  But  the  judge  refused  to  advise  a  nonsuit,  and  the 
case  went  to  the  jury,  who  found  a  verdict  for  the  plaintiff  against 
the  three  defendants. 

The  defendants  alleged  exceptions,  which  were  argued  and  deci- 
ded at  October  term  1854. 

B.  F.  Butler /or  the  defendants. 

G.  F.  Farley  and  J.  Q.  A.  Griffin /or  the  plaintiff . 

Shaw,  C.  J :  The  court  are  of  opinion  that  the  voting  list 
used  at  the  election  was  an  official  document ;  that,  in  theory,  it  is 
in  the  custody  of  the  town  clerk,  as  the  keeper  of  the  records,  doc- 
uments, official  files  and  papers  of  the  town,  and  should  be  re- 
garded as  an  important  document,  and  ought  to  be  certified,  or 
otherwise  authenticated,  and  recorded,  or  filed  and  preserved,  for 
the  security,  as  well  of  the  voters,  as  of  the  selectmen  and  other 
officers.  Taking  this  view,  we  think  the  voting  list  is  the  primary 
and  regular  evidence  that  any  one's  name  is  or  is  not  on  the  list, 
and  essential  to  the  proof  that  a  party  has  been  admitted  or  re- 
jected by  the  selectmen,  as  judges  of  the  qualifications  of  electors. 
Then,  according  to  the  general  rule  on  the  subject,  before  using 
secondary  evidence,  notice  to  produce,  or  a  subpoena  duces  tecum., 
must  be  issued,  either  to  the  town  clerk,  the  selectmen  for  the  time 
being,  or  the  person  who  has  the  keeping  of  the  muniments  of  title 
and  other  oflicial  papers. 


40G  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

If  the  original  document  is  produced  and  authenticated  as  the 
votins-list,  we  think  it  is  the  conclusive  evidence  upon  the  ques- 
tion whether  a  person  was  ajdmitted  as  a  qualified  voter  at  such 
meeting  or  not,  and  that  parol  proof  or  other  secondary  evidence 
would  not  be  admissible  to  control  it.  As  the  parol  evidence 
was  admitted  in  the  present  case,  without  notice  to  produce  the 
voting-list,  against  the  objection  of  the  defendants,  we  think 
there  must  be  a  new  trial. 

But  in  reference  to  the  facts  of  the  present  case,  it  seems 
proper  to  add,  that  if,  when  the  meeting  is  opened  and  the  voting 
commences,  the  name  of  a  person  stands  on  the  list,  as  that  of 
one  qualified  and  entitled  to  vote,  he  has  prima  facie  a  right  to 
vote,  and  has  no  occasion  then  to  offer  proof  of  his  title  ;  but  the 
selectmen  may  still  strike  off  his  name  and  reject  his  vote,  if  they 
can  prove  that  he  was  not  entitled  to  vote,  or  if  they  are  prepared 
to  show  that  he  has  not  paid  a  tax  within  two  years,  or  any  other 
decisive  fact  of  the  like  kind.    Humphrey  v.  Kingman,  5  Met.  168. 

If  the  party's  name  is  not  on  the  list,  he  must  seasonably  apply 
to  the  selectmen  and  offer  proof  of  his  right,  and  require  his 
name  to  be  placed  on  the  list ;  and  proof  of  such  proceeding  is 
necessary  to  maintain  his  action.  Blanchard  v.  Stearns,  5  Met. 
298  ;   Waite  v.  Woodn-ard,  10  Cush.  143. 

As  to  the  form  of  declaring,  we  think  that  where  the  name  of 
a  person  is  placed  on  the  list,  and  so  remains  to  the  commence- 
ment of  the  meeting,  and  the  selectmen  then,  on  their  responsi- 
bility, strike  off  the  name  of  such  person,  and  he  brings  an  action 
against  the  selectmen  on  the  ground  of  his  vote  being  refused, 
when  he  had  a  right  to  vote,  the  gravamen  of  the  case  will  be  the 
.refusal  to  receive  his  vote,  and  not  the  refusal  to  place  his  name 

on  the  list. 

New  trial  ordered. 

Upon  the  new  trial  at  April  term  1855,  the  plaintiff  introduced 
evidence  tending  to  show  that  the  defendants  erased  his  name 
from  the  list  of  voters  at  a  meeting  of  the  selectmen  held  just 
before  the  town  meeting ;  that  his  name  was  on  the  lists  of  voters 
posted  up  in  public  places  in  the  town  before  the  election  ;  that 
he  offered  his  vote  at  the  election,  but  the  defendants  refused  to 
receive  it,  liis  name  not  being  then  borne  on  that  list. 

The  plaintiff  did  not,  at  the  election,  or  at  any  other  time,  offer 
any  evidence  to  the  defendants,  of  his  having  the  legal  qualifica- 
tions of  a  voter  in  the  town  ;  nor  did  he  request  that  his  name 
should  be  inserted  on  tlie  list  of  voters  ;  but  he  tendered  his  vote, 
which  was  refused. 


OPINIONS   OF   THE   COURT.  407 

Upon  this  evidence,  the  defendants  contended  that  they  could 
not  be  held  liable  for  refusing  to  receive  the  plaintiff's  vote  at  said 
election,  because,  by  law,  the  defendants  had  no  right  to  receive 
the  vote  of  any  person  whose  name  was  not  borne  on  the  voters' 
list  at  the  election  ;  and  it  appearing  that  the  plaintiff's  name  was 
erased  from  the  list  before  the  election  took  place,  and  before  the 
meeting  was  opened,  that  this  action  could  not  be  maintained  ; 
but  the  plaintiff's  remedy  was  by  another  action,  charging  the 
defendants  with  wrongfully  erasing  his  name  from  the  list. 
Bigelow,  J.,  nonsuited  the  plaintiff;  and  the  nonsuit  was  con- 
firmed at  this  term  by  the  full  court. 


Charles  J.  Holmes  v.  Chester  W.  Greene  and  others. 

7  Gray,  299  (1856). 

A  citizen  of  Massachusetts,  removing  with  his  family  to  another  State,  and 
retaining  no  dwelling-place  in  Massachusetts,  though  retaining  his  place  of  business 
here,  and  intending  to  retain  his  domicile  here,  and  to  return  at  some  future  indefi- 
nite period  of  time,  has  no  domicile  in  Massachusetts. 

Action  of  tort  against  the  selectmen  of  Fall  River  for  1853, 
for  refusing  to  receive  the  plaintiff's  vote  at  the  annual  election 
for  State  officers  in  November  of  that  year.  Writ  dated  May  29, 
1854. 

At  the  trial,  the  defendants  admitted  that  the  plaintiff  had  all 
the  legal  qualifications  of  a  voter,  except  a  domicile  in  Fall  Kiver, 
and  that  was  the  only  question  submitted  to  the  jury  by  Bigelow, 
J.,  who  reserved  for  the  consideration  of  the  full  court  the  ques- 
tion whether  a  verdict  for  the  plaintiff  could  be  supported  upon 
the  following  evidence  :  — 

The  plaintiff  bad  been  a  resident  and  voter  in  Fall  Kiver  for 
ten  years  prior  to  the  Gth  of  May,  1853,  and  on  that  day  removed 
with  his  family  from  Fall  River,  across  the  line  of  the  State,  into 
the  town  of  Tiverton  in  the  State  of  Rhode  Island,  a  short  dis- 
tance from  his  former  residence,  and  there  continued  to  reside 
nntil  June,  1854,  when  he  returned  with  his  family  to  Fall  River, 
where  he  has  since  resided  ;  and  during  the  whole  time  his  office 
and  place  of  business  continued  in  Fall  River.  At  the  time  of 
his  removal  to  Tiverton,  the  house  in  which  he  had  been  living. 


408  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

had  been  sold  by  the  owner  to  one  who  wished  to  occupy  it  him- 
self ;  it  was  somewhat  difficult  to  obtain  good  tenements  in  Fall 
River  for  families  of  the  number,  ages  and  station  in  life  of  the 
plaintiff's  ;  and  the  plaintiff  made  unsuccessful  efforts  to  find  a 
house,  before  removing  to  Tiverton.  On  his  removal  to  Tiverton, 
he  gave  notice  to  the  selectmen  of  Fall  River,  and  to  the  select- 
men of  Tiverton,  that  he  was  about  to  remove  to  Tiverton  for  a 
temporary  purpose,  and  intended  to  retain  his  domicile  in  Fall 
River. 

At  the  meeting  in  Fall  River  in  November,  1853,  he  requested 
the  defendants  to  restore  his  name  to  the  list  of  voters  ;  fur- 
nished them  with  satisfactory  evidence  of  his  legal  qualifications 
as  a  voter  in  all  respects  except  residence  ;  and  referred  them  to 
legal  authorities  upon  the  question  of  his  right  of  suffrage,  which 
the  defendants  thought  did  not  support  his  claim. 

J.  S .  Bratton  for  the  defendants. 

C.  I.  Reed, /or  the  plaintiff,  cited  Sears  v.  Boston,  1  Met.  250  ; 
Blanchard  v.  Stearns,  5  Met.  298  ;  Harvard  College  v.  Gore,  5 
Pick.  370. 

BiGELOW,  J.  :  It  was  conceded,  at  the  trial  of  this  cause,  that 
the  same  evidence  which  was  submitted  to  the  jury,  was  offered  b}' 
the  plaintiff  to  the  defendants,  acting  as  selectmen  of  the  town  of 
Fall  River,  at  the  time  he  applied  to  them  to  have  his  name  placed 
on  the  list  of  voters  in  November,  1853.  The  case  was  therefore 
tried  according  to  the  rule  laid  down  in  Blanchard  v.  Stearns,  5 
Met.  298.  The  only  question  which  now  arises  upon  this  proof  is, 
whether  it  sustains  the  claim  of  the  plaintiff,  that  his  legal  domi- 
cile was  in  Fall  River  in  the  autumn  of  1853,  and  that  he  had  a 
right  to  vote  there  in  the  annual  election  of  that  year.  We  think 
it  very  clear  that  it  does  not.  This  case  differs  from  any  other 
which  has  heretofore  come  before  this  court,  involving  a  question 
of  domicile.  Six  months  before  the  time  when  the  plaintiff 
claimed  a  right  to  vote  in  Fall  River,  he  had  removed  thence  with 
his  family  and  all  his  household  goods  to  the  town  of  Tiverton,  and 
there  hired  a  house,  in  which  he  lived.  All  the  outward  indicia  of  in- 
habitancy pointed  to  Tiverton  as  his  place  of  residence.  The  whole 
case  of  the  plaintiff,  therefore,  rested  on  the  fact  that,  at  the  time 
of  his  removal  he  declared  his  intention  to  be  to  remain  in  Tiverton 
only  temporarily,  and  to  return  to  and  retain  his  habitancy  in  Fall 
River.  If  this  evidence  be  sufficient  to  sustain  a  claim  of  domicile, 
then  it  must  follow  that  a  mere  naked  declaration  of  intent  to 
reside  in  a  city  or  town  from  which  a  party  has  removed,  without 
any  proof  of  other  facts  with  which  such  intent  can  be  connected, 


OPINIONS   OF   THE    COURT.  409 

is  adequate  proof  of  inhabitancy,  under  the  Constitution  and  laws 
of  this  Commonwealth. 

This  cannot  be  so.  It  is  true  that,  in  cases  w^here  the  domicile 
of  a  party  is  in  issue,  evidence  of  his  intent  may  liave  an  impor- 
tant and  decisive  bearing  on  the  question,  but  it  must  be  in  con- 
nection with  other  facts,  to  which  the  intent  of  the  party  gives 
efficacy  and  significance.  Such  is  the  case  where  a  person  has  two 
dwelling-houses  in  different  towns,  in  each  of  which  he  lives  with 
his  family  an  equal  portion  of  the  year.  Harvard  College  v.  Gore, 
5  Pick.  370.  So,  too,  where  a  citizen  leaves  the  country  to  be 
absent  abroad  for  purposes  of  business  or  pleasure  for  an  indefinite 
period,  still  retaining  his  house  and  furniture  in  the  place  of  his 
previous  residence.  Sears  v.  Boston,  1  Met.  250.  But  no  case 
can  be  found  w^here  the  domicile  of  a  party  has  been  made  to 
depend  on  a  bald  intent,  unaided  by  other  proof.  The  factum 
and  the  animus  must  concur  in  oi'der  to  establish  a  domicile. 
Harvard  College  v.  Gore,  5  Pick.  370.  The  latter  may  be  inferred 
from  proof  of  the  former.  But  evidence  of  a  mere  intent  cannot 
establish  the  fact  of  domicile. 

New  trial  ordered. 


OPINION  OF  THE  JUSTICES  TO  HOUSE  OF  REPRESENTATIVES. 

10  Grat,613  (1858). 

Chief  Justice  Shaw,   and    Associate  Justices  Dewey,  Metcalf,  Bige- 

Low,  Thomas  and  Merrick. 

Under  the  twenty-first  article  of  amendment  of  the  Constitution,  the  mayor  and 
aldermen  of  Boston,  in  the  county  of  Sufiolk,  and  the  county  commissioners  in  other 
counties,  are  empowered  to  apportion  the  number  of  representatives  assigned  to  tlie 
county  among  the  representative  districts  formed  by  them,  under  said  article,  as 
well  as  to  form  the  districts;  and  their  doings  and  returns  in  the  premises  are 
conclusive  and  cannot  be  revised  by  the  liouse  of  representatives  in  judging  of  the 
returns  of  elections  and  qualifications  of  its  members. 

The  undersigned,  justices  of  the  supreme  judicial  court,  have 
received  a  communication  from  the  honorable  the  house  of  repre- 
sentatives, requesting  their  opinion  upon  the  following  questions, 
to  wit :  — 

"  First.     Does  the  twenty-first  article  of  amendment  of  the  Con- 


410  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

stitution  confer  on  the  commissioners  named  in  that  article,  or  in 
the  county  of  Suffolk,  on  the  mayor  and  aldermen  of  the  city  of 
Boston,  any  power  to  apportion  the  number  of  representatives  to 
which  the  county  is  entitled,  among  the  representative  districts 
formed  by  them  pursuant  to  that  article?  Or,  in  other  words, 
does  the  power  of  the  said  commissioners,  or  mayor  and  aldermen, 
extend  to  the  assignment  of  the  number  of  representatives  to 
which  the  districts  formed  by  them  are  entitled,  as  well  as  to  the 
formation  of  such  districts? 

"  Second.  AVhen  the  said  commissioners  or  mayor  and  aldermen 
have  divided  the  county  into  representative  districts,  and  appor- 
tioned the  representatives  to  which  the  county  is  entitled  among 
such  districts,  is  it  competent  for  the  house  of  representatives, 
in  judi^ing  of  the  returns  of  elections  and  qualifications  of  its  own 
members,  to  revise  their  said  proceedings  in  whole  or  in  part, 
and  to  change  the  number  of  representatives  so  apportioned  to 
any  district  or  districts,  if  satisfied  that  such  number  is  different 
from  the  number  to  which  such  district  or  districts  would  be 
entitled,  if  determined  exclusively  by  the  enumeration  of  legal 
voters,  taken  pursuant  to  said  twenty-first  article  of  amendment?  " 

Whereupon  the  undersigned,  having  taken  the  said  questions 
into  consideration,  do  thereupon  ask  leave  respectfully  to  submit 
the  following  opinion  :  — 

Upon  the  first  question  we  are  of  opinion,  that  the  twenty-first 
article  of  amendment  of  the  Constitution,  which  took  effect  and 
went  into  operation  in  1857,  did  confer  full  power  on  the  com- 
missioners named  in  that  article,  in  all  the  counties  except  Suf- 
folk, and  in  the  county  of  Suffolk  on  the  mayor  and  aldermen  of 
the  city  of  Boston,  to  apportion  the  number  of  representatives  to 
which  such  county  might,  by  the  act  of  legislation  therein  pro- 
vided for,  be  entitled  to  among  the  representative  districts  to  be 
formed  by  them  pursuant  to  said  article  ;  and  that  the  power  of 
the  said  commissioners  in  the  several  counties,  and  of  said  mayor 
and  aldermen  in  Suffolk,  did  extend  to  the  assignment  of  the 
number  of  representatives  to  which  each  of  the  districts  to  be 
formed  by  them  would  be  entitled,  as  well  as  to  the  formation  of 
such  districts. 

We  are  of  opinion,  founded  on  all  the  terms  and  provisions  of 
the  21st  article  of  amendment,  as  well  as  on  the  objects  and  pur- 
l)oses  proposed  to  be  accomplished  by  this  change  in  an  important 
part  of  the  Constitution,  that  it  was  intended  to  vest  in  the 
county  commissioners  for  the  several  comities,  and  in  the  mayor 
and  aldermen  of  the  city  of  Boston,  unless  special  commissioners 


OPINIONS   OF    THE    COURT.  411 

should  first  be  elected  for  that  purpose,  in  the  manner  directed  by 
that  article  for  the  exercise  of  the  same  power,  which  was  not 
done,  not  only  to  form  the  several  towns  in  each  county  and 
wards  of  each  city  in  their  respective  counties  into  local  districts, 
to  be  designated  by  metes  and  bounds,  and  further  designated  by 
a  specific  enumeration,  not  dividing  any  town  or  any  ward  of  a 
c  ty,  and  make  return  thereof,  and  therein  to  specify  and  declare 
the  number  of  representatives,  which  each  of  said  districts  shall 
have  a  right  to  send  to  the  general  court,  to  constitute  the  house 
of  representatives,  the  number  thus  assigned  to  each  district,  and 
thus  declared  and  returned  not  to  be  less  than  one  nor  more  than 
three  in  each  district.  And  we  may  add  that,  in  our  own  opinion, 
these  boards  of  commissioners,  —  no  special  commissioners  having 
been  elected  for  the  purpose,  —  would  not  have  fully  executed  the 
power  confided  to  them  by  this  constitutional  provision,  nor  fully 
have  performed  the  duty  required  of  them,  if  they  had  not  thus 
assigned,  designated  and  specified,  and  declared  in  their  returns 
the  number  of  representatives  to  which  each  district  should  be 
entitled,  until  the  time  for  a  new  formation  of  a  district,  and 
apportionment  of  representatives. 

Perhaps  it  may  not  be  easy,  in  a  short  space,  to  state  all  the 
reasons  on  which  this  opinion  is  placed,  but  we  will  mention  some 
of  the  most  prominent. 

This  amendment  contemplated  and  provided  for  carrying  into 
effect,  one  of  the  most  important  changes  which  could  be  made  in 
the  Constitution  of  the  Commonwealth.  Nothing  can  more 
deeply  concern  the  freedom,  stability,  the  harmony  and  success  of 
a  representative  republican  government,  nothing  more  directly 
affect  the  political  and  civil  rights  of  all  its  members  and  subjects, 
than  the  manner  in  which  the  popular  branch  of  its  legislative 
department  is  constituted.  AVe  do  not  here  speak  of  it  in  its 
character  as  a  true  representative  of  the  interests,  the  intelligence 
and  the  will  of  the  whole,  and  all  the  parts  of  the  constituent 
body,  but  as  a  practical  scheme  of  measures  for  the  accomplish- 
ment of  a  great  object.  It  obviously  required  a  system  of  plain, 
simple  and  intelligible  rules,  easy  to  be  understood,  and  to  be 
carried  practically  into  execution  b}'  hundreds  and  thousands  of 
town  and  city  oflScers  of  all  degrees  of  intelligence.  And  this 
system  was  designed  to  supersede  and  replace  the  long  practice  of 
electing  representatives  through  the  medium  of  town  organiza- 
tions, and  the  agency  of  municipal  oflTicers,  a  practice  which  had 
grown  so  familiar  from  experience  and  habit,  that  it  was  almost 
impossible  that  any  mistake  could  be  made.  These  considera- 
tions, it  appears  to  us,  must  have  been  deeply'  impressed  on  the 


412  MASSACHUSETTS    ELECTION    CASES  —  1853-1885. 

minds  of  the  legislatures  and  people  of  the  Commonwealth,  in 
proposing  and  adopting  this  amendment,  and  must  therefore  be 
kept  steadily  in  view  in  putting  a  construction  upon  it,  both  in  its 
general  scope  and  in  all  its  details. 

The  great  object  to  be  attained  manifestly  was,  to  reduce  greatly 
the  number  of  representatives,  and,  in  conformity  with  the  theory 
of  representation,  to  secure  as  nearly  as  possible  an  equality  in 
the  ratio  of  representatives  and  legal  voters  throughout  the  Common- 
wealth. This  object  might  be  accomplished  in  any  one  of  various 
modes.  The  amendment  itself  might  have  divided  the  State  into 
districts,  and  have  apportioned  the  representatives  among  them, 
or  it  might  have  authorized  the  legislature  to  do  the  same  thing ; 
or  it  might  authorize  the  legislature  to  do  it  in  part,  and  provide 
that  the  details  should  be  completed  by  another  body  specially 
designated  and  empowered  for  that  purpose.  This  was  the  ex- 
pedient actually  adopted.  A  census  of  the  number  of  legal  voters 
in  each  city  and  town  being  first  made,  as  provided  for  in  the 
amendment,  the  legislature  were  required  to  apportion  the  two 
hundred  and  forty  representatives  among  the  several  counties  of 
the  State.  Then,  unless  a  law  should  be  passed  providing  for  the 
election  of  a  board  of  special  commissioners  in  each  county,  and 
no  such  law  was  passed,  send  no  such  special  commissioners  were 
elected,  the  mayor  and  aldermen  of  the  city  of  Boston,  the  county 
commissioners  of  other  counties  than  Suffolk  should,  on  the  first 
Tuesday  of  August,  after  each  assignment  of  representatives  to 
each  county,  assemble  at  the  shire  town  of  their  respective  coun- 
ties, and  proceed  as  soon  as  may  be  to  divide  the  same  into  rep- 
resentative districts  of  contiguous  territory,  so  as  to  apportion  the 
representation  assigned  to  each  county  equally,  as  nearly  as  may 
be,  according  to  the  number  of  legal  voters  in  the  several  districts 
of  each  county. 

Such  was  the  system  provided.  The  legislature,  had  they  seen 
fit,  might  have  postponed  making  the  apportionment  among  the 
counties,  and  in  the  meantime  have  provided  by  law  for  the  elec- 
tion of  special  commissioners,  which  would  have  extended  as  well 
to  Suffolk  as  to  the  other  counties  ;  had  they  done  so,  the  powers 
of  such  special  commissioners  would  have  been  precisely  the  same 
in  all  the  counties.  The  legislature  passed  no  such  law ;  on  the 
contrar}',  thev  made  the  apportionment  among  the  counties  which, 
by  the  amendment,  the  secretary  of  the  Commonwealth  was  re- 
quired forthwith  to  certify  to  the  board  authorized  to  divide  each 
county  into  representative  districts.  It  became,  therefore,  the 
duty  of  the  mayor  and  aldermen  of  Boston  to  proceed  and  per- 
form the  same  duties  for  the    county  of   Suffolk,  which  special 


OPINIONS   OF   THE    COURT.  413 

commissioners  would  have  been  authorized  and  required  to  do, 
had  they  been  elected  as  provided  in  this  amendment. 

These  boards  are  to  divide  the  respective  counties  into  repre- 
sentative districts,  so  as  to  apportion,  as  nearly  as  may  be,  ac- 
cording to  their  relative  number  of  legal  voters  ;  but  this  is  to  be 
done  under  several  absolute  and  inflexible  conditions  prescribed 
by  the  Constitution,  by  which  they  are  bound. 

1.  No  town  and  no  ward  of  any  city  can  be  divided  in  forming 
a  district. 

2.  No  town  or  ward  of  a  city  can  be  united  with  any  other 
town  or  ward  of  a  city  to  form  a  district,  unless  they  are  contig- 
uous to  each  other. 

3..  No  district  can  be  formed,  embracing  so  large  a  number  of 
voters  as,  according  to  the  ratio  for  such  county,  would  enable  it 
to  send  more  than  three  representatives. 

Subject  to  these  conditions,  having  a  regard  to  the  relative 
number  of  voters  in  each  town  and  city  ward,  so  far  as  it  can  be 
had,  consistently  with  these  fixed  conditions,  they  are  to  form 
representative  districts  with  such  number  of  voters  as  to  enable 
them  to  choose  one,  two  or  tJu^ee  representatives.  To  illustrate 
this  :  They  must  first  ascertain  the  ratio  between  the  voters  and 
the  representatives,  by  taking  the  whole  number  of  voters  in  the 
county,  and  dividing  that  number  by  the  number  of  representa- 
tives assigned  to  it.  This  must,  almost  of  necessity,  certainly 
according  to  the  doctrine  of  chances,  l^ave  a  fraction  for  which 
it  may,  in  some  cases,  be  necessary  to  provide.  Having  estab- 
lished the  ratio  for  one,  it  is  for  the  board  to  form  districts  hav- 
ing within  them  numbers,  as  near  as  may  be,  in  reference  to 
other  conditions,  to  the  ratio  thus  found,  to  choose  one  repre- 
sentative, or  twice  that  number  to  choose  two,  or  three  times  that 
number  to  choose  three.  This  is  clearly  within  their  express 
authority.  They  are  bound  to  have  this  consideration  in  their 
own  mind,  in  forming,  describing  and  numbering  each  district, 
whether  it  is  a  district  for  one,  two  or  three  ;  this  they  are  bound 
to  do,  by  the  regard  they  are  bound  to  have  to  equality  in  the 
ratio  between  voters  and  representatives.  They  are  bound  to 
form  the  district  with  a  view  to  the  number  of  the  representatives 
to  which  such  district  shall  be  entitled,  whether  they  are  bound  to 
express  it  in  their  return  or  not. 

In  many  counties  there  may  be  a  great  variety  of  circumstances 
calling  for  the  exercise  of  judgment  in  the  formation  of  districts. 
The  county  of  Middlesex  has,  we  believe,  fifty-two  towns  and 
cities  —  forty-nine  towns  and  three  cities.  Suppose  each  city  has 
six  wards,  here  are  sixty-seven  organized  bodies,  with  some  very 


414  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

Iar2;e  towns  and  some  very  small  ones,  to  be  classed  and  grouped 
together  into  districts,  so  as,  in  the  whole,  to  elect  thirty-eight 
representatives.  We  will  not  undertake  to  imagine  the  great 
variety  of  complex  circumstances  under  which,  according  to  the 
Constitution,  this  duty  is  to  be  done.  Without  putting  particular 
cases  by  way  of  illustration,  which  might  be  greatly  extended,  it 
seems  that  equality  between  voters  and  representatives  cannot  be 
reached,  and,  indeed,  was  not  contemplated  by  the  amendment, 
except  that,  "  as  nearly  as  may  be,"  approximation  to  this 
equality,  is  to  be  sought  by  those  whose  duty  it  is  to  form 
the  districts.  In  forming  districts  with  a  view  to  such  approxi- 
mation, they  must  take  into  consideration, 

1st  The  absolute  number  of  voters  in  each  town  and  city  ward 
of  the  county,  as  fixed  by  the  census  for  the  occasion. 

2d.'  Whether  that  number  is  over  or  under  the  ratio  of  voters 
to  a  representative  for  that  county,  as  first  found,  and  how  nearly 
it  approaches  that  ratio  for  one,  or  double  that  number  for  two, 
or  treble  that  ratio  for  three  representatives. 

3d.  Whether  any  one  town  or  city  ward,  with  reference  to  that 
ratio,  can  be  constituted  one  district  approximating  nearly,  and 
how  nearly,  to  the  ratio  for  sending  one  or  more,  or  whether  any 
such  town  or  city  ward  can  be  so  combined  with  any  other  one  or 
more  towns  or  city  wards,  so  that  the  aggregate  of  voters  in  the 
towns  or  wards  so  combined,  shall  approach  nearly,  and  how 
nearly,  to  such  ratio,  or  its  duplicate  or  triplicate. 

Thus  it  will  be  perceived  that  the  great  principle  of  equality  of 
representation,  or  the  nearest  practicable  approximation  to  it, 
which  lies  at  the  foundation  of  this  whole  constitutional  provision, 
is  to  govern,  subject  to  the  inflexible  restrictions,  not  only  in  appor- 
tioning the  representatives  to  the  district,  but  in  the  mode  of 
forming  the  disti'icts  so  as  to  bring  that  approximation  as  near  as 
may  be  to  the  true  equality.  They  have  full  authority  to  form 
these  districts,  with  reference  to  the  election  of  one,  two  or  three 
representatives,  and  were  bound  to  be  governed  by  the  great  prin- 
ciple of  equality  in  doing  it,  conformably  to  the  tenor  of  the 
constitutional  amendment  under  which  they  acted.  Here,  then, 
there  was  abundant  room  for  the  exercise  of  reason  and  judgment 
in  forming  the  districts  ;  they  must  have  formed  them  with  the 
view  to  their  right  to  elect  one,  two  or  three  representatives,  and 
it  would  seem  to  be  necessarily  incident  to  the  completion  of  the 
work,  that  they  should  declare  and  return  the  number  intended 
that  each  district  should  be  entitled  to  elect. 

Thus  far  we  have  drawn  our  illustrations  respecting  the  powers 
of  the  commissioners,  and  mayor  and  aldermen,  from  the   cases 


OPINIONS    OF   THE    COUKT.  415 

which  may  be  supposed  to  arise  in  other  counties  than  Suffolk. 
The  circumstances  indeed,  on  which  the  commissioners  were  to  act, 
might  be  considerably  different,  inasmuch  as  the  city  at  no  distant 
period  had  been  divided  into  twelve  wards,  then  nearly  equal,  for 
the  purposes  of  representation  in  the  city  council.  There  would, 
therefore,  be  likely  to  be  fewer  cases  of  complex  and  extraordinary 
facts,  calling  for  the  exercise  of  judgment,  though  there  had  come 
to  be  large  discrepancies  between  the  numbers  of  inhabitants,  and 
still  greater  of  legal  voters,  in  the  respective  wards.  But  the  same 
powers  are  given  in  the  same  terms  to  the  mayor  and  aldermen  in 
Suffolk  and  the  commissioners  in  other  counties,  and  no  purpose  is 
shown  in  the  amendment,  to  invest  them  with  other  or  different 
powers. 

Again,  this  constitutional  amendment  not  only  vested  in  the 
mayor  and  aldermen  the  power  to  form  districts  in  the  county  of 
Suffolk  after  the  census  and  apportionment  of  1857,  but  also  after 
that  to  be  made  in  1865,  and  every  tenth  3'ear  after,  to  all  future 
time.  There  may  or  may  not  be  a  new  arrangement  of  the  city 
into  wards,  by  increasing  or  diminishing  the  number  of  wards,  or 
by  an  entirely  new  division.  If  no  such  new  arrangement  of  wards 
is  made  before  1865,  or  the  next  or  some  succeeding  decennial 
term,  judging  from  experience,  there  will  probably  be  a  much 
greater  disparit}-  in  the  number  of  legal  voters  than  at  present. 
Some  one  or  more  will  perhaps  have  so  increased,  that  when  the 
ratio  for  the  count}^  is  established,  the}'  may  be  found  to  have  over 
four  times  that  number  ;  but  by  the  inflexible  rule  it  can  have  but 
thi'ee  representatives.  Some  one  may  have  so  far  decreased  as  to 
fall  short  of  the  ratio  for  one.  But  by  the  same  inflexible  rule,  it 
cannot  be  disfranchised.  It  may  not  be  contiguous  to  an}'  other 
ward,  with  which  it  may  be  united,  without  making  the  aggegate 
number  of  voters  more  than  enough  by  the  ratio  for  three  ;  it  must 
therefore,  however  small,  be  constituted  a  district  to  choose  one. 

Here,  then,  would  be  room  and  a  great  demand  for  the  exercise 
of  reason  and  judgment  in  determining,  among  various  methods 
placed  within  their  reach,  how  the  districts  should  be  formed,  and 
a  determination,  somewhat  judicial  in  its  character,  how  many  rep- 
resentatives each  district  is  entitled  to  elect. 

But,  at  the  time  of  the  adoption  of  this  amendment,  it  could  not 
be  known  that  such  questions  would  not  arise  in  Suffolk  as  well 
as  in  other  counties  ;  and  the  power  was  given  to  the  commission- 
ers of  all  counties  alike,  to  meet  all  cases  to  which  it  could  extend 
at  the  first  or  subsequent  establishment  of  districts. 

The  makers  of  this  constitutional  amendment,  not  having 
formed  the  State  into  districts  for  the  election  of  representatives. 


416  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

not  having  vested  the  power  in  the  legislature  to  form  the  counties 
into  districts,  but  only  to  apportion  the  two  hundred  and  fortv 
representatives  among  the  counties,  must  have  felt  the  necessity 
of  providing  a  body,  competent  in  their  view  to  perform  this  duty 
fully  and  completely.  They  must  have  understood  that,  in  the 
performance  of  this  duty,  the  questions  herein  before  suggested, 
and  many  others  not  capable  of  being  solved  by  mere  computation, 
must  arise  and  must  be  determined  by  sound  judgment.  The 
question  then  recurs,  looking  at  the  exact  terms  of  the  amendment 
and  its  obvious  purposes,  to  what  body  was  this  dutv  intrusted 
and  what  powers  were  vested  in  them  to  enable  them  to  perform 
it? 

We  can  have  no  doubt  that  this  whole  duty  was  confided  to  the 
county  commissioners  for  other  counties,  and  to  the  mayor  and 
aldermen  of  Boston  for  the  county  of  Suffolk,  there  being  no 
county  commissioners  in  this  county.  The  terms,  though  not 
clear  and  explicit,  do,  in  our  opinion,  import  this.  They  are  to 
divide  their  respective  counties  into  representative  districts,  so  as 
to  apportion  representation  equally,  as  near  as  may  be,  according 
to  the  number  of  voters  in  each  district.  There  is  a  slight 
obscurity  in  the  sentence,  which  would  be  removed  by  a  slight 
change  in  the  words.  If  there  were  a  comma  after  ^'  voters,"  and 
the  word  "  in  "  were  "  to,"  it  would  bo  somewhat  more  free  from 
obscurity.  But  we  think  the  meaning  is,  "so  as  to  apportion," 
or  "so  that  they  may  apportion"  "in"  or  "to"  the  districts. 
But  this  is  confirmed  by  the  residue  of  the  provision  prescribing 
the  duty  of  the  commissioners. 

The  districts  in  each  county  shall  be  numbered  by  the  board, 
and  a  description  of  each,  so  numbered,  with  the  number  of  legal 
voters  in  such  county,  shall  be  returned  by  the  board  to  the 
secretary  of  the  Commonwealth,  the  county  treasurer  of  each 
county,  and  the  clerk  of  every  town  in  each  district,  to  be  filed 
and  kept  in  their  respective  offices. 

Here,  then,  is  the  purpose  for  which  these  returns  are  to  be 
made  :  not  for  revision  or  correction,  not  for  acceptance  or  rejec- 
tion, or  recommitment,  but  for  preservation  and  information  ;  a 
final  act  determining  the  rights  of  all  parties  concerned,  and,  in 
effect  standing  as  part  of  the  Constitution  during  the  decennial 
period. 

Again  ;  it  is  not  expressly  required  by  the  provision,  that  the 
board  shall  state  the  whole  number  of  the  representatives  which 
they  are  required  to  apportion  to  the  whole  county ;  whereas  by 
returning  the  number  apportioned  to  each  district,  the  aggregate 
of  the  numbers  of  representatives  assigned  to  each  district  will 


OPINIONS   OF   THE    COURT.  417 

show  that  the}'  have  rightly  apportioned  the  whole  number  assigned 
to  the  county  ;  and  this  leads  to  a  strong  conclusion,  that  such  an 
apportionment  to  each  district  was  to  be  made  and  returned  by 
the  commissioners. 

But  even  should  the  commissioners  return  the  whole  number  of 
representatives  apportioned  to  the  county,  and  that  they  had 
formed  it  into  a  given  number  of  districts,  stating  the  number  of 
legal  voters  in  each,  without  specifying  the  number  of  representa- 
tives to  each  district,  the  work  would  be  very  imperfect.  For 
instance,  in  Suffolk  there  are  two  cities,  Boston  and  Chelsea,  and 
two  towns,  North  Chelsea  and  Winthrop.  Whether  Chelsea  is 
divided  into  wards  or  not,  we  do  not  know ;  probably  it  is. 
Suppose  the  mayor  and  aldermen  had  returned  that  they  had 
apportioned  twenty-eight,  the  number  of  representatives  assigned 
to  the  county  by  the  legislature,  and  had  formed  it  into  thirteen 
districts,  giving  the  number  of  voters  in  each,  without  more  ;  it 
would  be  extremely  difficult,  if  not  impossible,  to  determine  by 
mere  calculation,  what  number  each  would  be  entitled  to  choose, 
on  account  of  the  fractions,  larger  or  smaller,  by  which  some  dis- 
tricts would  fall  short,  and  some  exceed  the  average  ratio.  But  if 
it  were  possible  to  ascertain  the  number  of  representatives  which 
each  district  would  be  entitled  to  elect,  it  must  be  through  the 
medium  of  a  complex  and  difficult  calculation,  to  be  made  by  the 
officers  and  voters  at  every  election  ;  whereas  the  article  i)lainly 
requires  a  simple,  recorded  document,  open  to  the  inspection  of 
all,  stating  in  terms  the  number  which  each  district  may  elect,  for 
the  government  of  all  city,  town  and  ward  officers,  in  issuing 
warrants,  calling  and  holding  meetings,  and  for  receiving  and 
certifying  Azotes,  and  also  for  the  information  and  security  of 
voters. 

The  question  then  recurs  whether  the  doings  and  returns  made 
conformably  to  the  article  of  amendment  are  to  be  deemed  con- 
clusive ? 

This  is  a  question  of  power.  The  power,  whatever  was  its 
extent,  was  conferred  when  the  amendment  was  adopted ;  it  was 
conferred  alike  on  the  commissioners  and  on  the  mayor  and 
aldermen  in  their  respective  counties  ;  it  was  not  limited  to  the 
state  of  things  as  it  then  existed,  but  was  intended  to  adapt  itself 
to  all  such  changes  and  states  of  things  as  might  arise  at  any 
future  time.  As  the  exigency  of  the  case,  namely  the  regular  and 
harmonious  action  of  the  government,  required  that  the  powers  of 
those  bodies,  appointed  in  behalf  of  the  people  to  establish  repre- 
sentative districts,  should  be  large  and  adequate  to  the  occasion, 
to  enable  them  to  decide  all   questions  inci  lent  to  the   establish- 


418  MASSACHUSETTS   ELECTION    CASES  —  1853-1885. 

ment  of  such  districts  within  the  limits  prescribed  by  the  article 
itself.  As  such  exigency  required  that  the  execution  of  these 
powers  should  be  definitive  (and  no  mode  is  suggested  for  the 
revision  of  the  doings  of  the  commissioners),  the  conclusion  is 
that  the  decisions  of  the  various  questions  before  them,  made  by 
the  bodies  thus  empowered  as  expressed  in  their  final  action  and 
returns,  must  be  taken  to  be  decisions  made  by  a  body  of  com- 
petent jurisdiction,  duly  authorized  by  the  Constitution,  and  are 
therefore  conclusive. 

In  answer  to  the  second  question,  the  undersigned  are  of  opin- 
ion that  it  would  not  be  competent  for  the  house  of  representatives, 
in  the  case  supposed,  in  judging  of  the  returns,  elections  and 
qualifications  of  its  own  members,  to  revise  the  proceedings  of 
the  county  commissioners  and  mayor  and  aldermen,  in  whole  or 
in  part,  and  to  change  the  number  of  representatives,  by  them 
apportioned  to  any  district,  if  satisfied  that  such  number  is  differ- 
ent from  the  number  to  which  such  district  would  be  entitled,  if 
determined  exclusively  by  the  enumeration  of  legal  voters,  taken 
pursuant  to  said  twenty-first  article  of  amendment. 

The  house  of  representatives  are,  by  the  Constitution,  final 
judges  of  the  returns,  elections,  and  qualifications  of  their  own 
members.  Their  duty  is,  we  think,  rather  to  judge  of  the  rights 
of  persons  returned  as  members,  and  claiming  to  be  members, 
than  of  the  rights  of  districts  or  constituencies,  although  the  latter 
may  sometimes  be  incidentally  involved.  For  instance,  in  the 
case  suggested  by  the  question,  suppose  tliree  members  are 
returned  by  a  district  to  which  three  were  assigned,  and  suppose 
another,  to  which  two  only  were  assigned,  claiming  a  right  to  send 
three,  liad  elected  and  returned  three  ;  the  whole  six  could  not  hold 
seats,  and  the  house  must  decide  between  them.  But  in  coming 
to  that  decision,  they  must,  in  our  opinion,  look  exclusively  to 
the  act  done  by  the  commissioners  pursuant  to  the  Constitution 
by  which  the  districts  were  formed,  and  the  number  of  represen- 
tatives assigned  to  each.  Were  it  otherwise,  it  appears  to  us  that 
great  confusion  would  follow.  If  the  house  could  decide  between 
two  particular  districts,  coming  before  them  by  petition  or  other- 
wise, each  claiming  a  superior  right  to  the  other,  then  any  and  all 
the  other  thirteen  or  fourteen  districts  in  Suffolk  might  come 
before  the  house  in  the  same  manner,  to  have  their  rights  deter- 
mined. So  of  the  county  of  Middlesex,  with  its  forty-nine  towns 
and  three  cities  to  choose  thirty-eight  representatives  ;  it  may  be 
divided  into  any  number  of  districts  not  less  than  thirteen  nor 
more  than  thirty-eight.  Should  any  error  be  discovered  in  com- 
bining contiguous  towns  and  city  wards  into   districts,  or  in  the 


OPINIONS    OF    THE    COUKT.  419 

computation  of  the  numbers  of  voters  necessary  to  the  apportion- 
ment of  representatives  among  tliera,  the  whole  might  be  revised, 
and  many  changes  of  representatives  made,  and  yet  such  act  of 
the  house  could  only  extend  to  the  elections  for  one  year. 

Now  it  is  obvious  that  if  the  Constitution  had  itself  framed  the 
districts,  and  apportioned  the  representatives,  it  must  be  taken 
by  the  house  to  be  conclusive,  although  errors  of  computation 
might  afterwards  be  discovered  in  the  application  of  the  principle 
of  distribution  adopted  by  its  framers.  Now  when  a  part  of  this 
duty  was  ordered  to  be  done,  and  returned  by  other  public  bodies, 
and  recorded  in  various  public  offices  for  the  general  and  author- 
itative information  of  all  officers  and  voters,  it  was  an  act  done 
by  the  delegated  authorit}'  of  the  Constitution,  and  ought  to  have 
the  same  practical  effect  as  if  done  in  terms  by  the  framers  of  it. 

For  the  reasons  given  in  answer  to  the  first  question,  therefore, 
we  are  of  opinion  that  the  house  of  representatives,  in  exercising 
the  right  vested  in  them  by  the  Constitution  respecting  the  election 
of  members,  are  bound  to  take  the  formation  of  districts  and 
the  apportionment  of  representatives  to  each  district,  as  made 
and  returned  by  the  county  commissioners,  and  the  mayor  and 
aldermen  of  Boston  in  their  respective  counties,  to  be  conclusive. 
If  it  shall  be  asked  what  shall  be  done  if  one  of  these  apportion- 
ments and  returns  shall  be  discovered  to  be  erroneous,  our  answer 
is  that  the  Constitution  has  provided  no  power  competent  to  inquire 
into  and  correct  any  such  error.  Some  error  may  occur  in  all 
human  transactions,  and  therefore  even  those  who  may  discover 
or  think  the}'  have  discovered  an  error,  may  themselves  have  fallen 
into  error  in  conducting  their  inquiries  and  making  their  computa- 
tions. But  the  final  power  must  rest  somewhere,  and  the  exigen- 
cies of  government  will  not  admit  of  its  waiting  in  its  movements 
until  all  possible  errors  in  its  constitution  and  organization  are 
removed. 

All  public  officers  who  are  charged  with  the  performance  of 
public  duties,  and  who  may  be  guilty  of  fraudulent,  wilful  and 
corrupt  conduct  in  the  discharge  of  them,  are  liable  to  prosecution 
and  punishment  therefor,  by  impeachment  or  indictment ;  but  even 
punishment  for  their  misdeeds  may  not  necessarily  correct  them, 
though  it  may  afford  an  additional  security  to  the  public  against 
their  perpetration. 

Boston,  March  11,  1858. 


420  MASSACHUSETTS    ELECTION    CASES 1853-1885. 


Edwin  A.  Luce  v.   Theodore  G.  Mathew  and  others. 

13  Gray,  83  (1859). 

A  certificate  of  the  number  of  votes  given  for  county  commissioners  at  a  town 
meeting  duly  held  for  that  purpose,  and  of  the  result  thereby  appearing,  signed 
"Attest,  J.  S.,  "  without  showing  that  it  is  a  copy  of  the  town  record,  or  that  J.  S. 
is  town  clerk,  is  not  a  return  which  the  board  of  examiners  are  authorized  to  receive, 
or  will  be  required  by  mandamus  to  consider  in  determining  who  is  elected  county 
commissioner. 

Hoar  J. :  This  case  arises  upon  an  alternative  writ  of  manda- 
mus, issued  upon  the  petition  of  Edwin  A.  Luce  of  Tisbury,  in 
which  the  petitioner  alleges  that  he  was  duh^  elected  a  county  com- 
missioner for  the  county  of  Dukes  Count}',  at  the  election  in  Nov- 
ember, 1858  ;  that  the  board  of  examiners  for  that  county  met 
according  to  the  requirements  of  law  ;  that  by  the  returns  made 
to  said  examiners,  it  appeared  that  the  petitioner  had  received  the 
highest  number  of  votes  at  said  election ;  that  it  was  thereupon 
their  duty  to  declare  the  petitioner  to  be  duly  elected  to  said  office, 
and  fortliwith  to  give  him  a  written  notice  to  that  effect,  in  due  form 
of  law;  that  they  have  neglected  and  refused  to  declare  him  duly 
elected  as  such  commissioner,  and  to  give  him  written  notice  of  lis 
election  ;  but,  on  the  contrary,  have  given  a  certificate  of  elec- 
tion to  said  office  to  William  S.  Vincent,  who  was  not  legally 
elected  thereto. 

The  writ  was  served  upon  the  examiners,  who  appeared  at  May 
term  1859  in  Barnstable,  and  showed  cause  why  a  peremptory 
mandamus  should  not  issue  ;  and  notice  of  the.penden<?y  of  these 
proceedings  was  given,  by  order  of  the  court,  to  William  S. 
Vincent,  the  incumbent  of  the  office. 

At  the  hearing  it  was  proved  and  admitted,  that  when  the  board 
of  examiners  met  to  examine  the  returns  of  votes  transmitted  to 
them,  papers  purporting  to  be  returns  of  votes  from  each  of  the 
three  towns  in  the  county  of  Dukes  County  were  received  by 
them  ;  that  they  rejected  the  returns  from  the  towns  of  Tisbury 
and  Chilmark,  as  not  being  made  in  conformity  with  the  require- 
ments of  law ;  that  William  S.  Vincent  had  a  large  majority  of 
the  votes  given  in  the  town  of  Edgartowu,  from  which  town  a 
correct  return  was  received,  and  that  he  was  thereupon  declared 
duly  elected,  and  a  certificate  of  his  election  was  given  to  him. 

It  also  appeared  that  if  the  returns  from  Tisbury  and  Chilmark 
had  both  been  received  and  counted,  the  petitioner  would  have 


OPINIONS   OF   THE   COURT.  421 

been  entitled  to  the  certificate  of  election  ;  but  that  if  eitlier  of 
them  were  rejected,  the  result  of  the  election  would  be  the  same 
as  if  the  vote  of  Edgartowu  alone  were  counted  ;  the  plurality  for 
Luce  in  either  not  being  in  itself  sufficient  to  counterbalance  the 
plurality  for  Vincent  in  Edgartown. 

The  question  then  arises  whether  the  returns  from  either  town 
were  rightly  rejected  by  the  board  of  examiners.  The  only  return 
received  by  them  from  the  town  of  Chilmark  was  the  followin^y : 

"  At  a  legal  meeting  of  the  inhabitants  of  the  town  of  Chilmark,  in 
Dukes  County  and  Commonwealth  of  Massachusetts,  qualified  to  vote 
in  elections,  holden  on  the  second  day  of  November,  in  the  year 
eigliteen  hundred  and  fifty-eight,  for  the  purpose  of  voting  for  a  county 
commissioner  for  said  county,  the  votes  given  in  were  sorted,  counted, 
recorded,  and  public  declaration  thereof  made,  and  were  for  the  follow- 
ing persons : 

Whole  number  of  ballots, 44 

Edwin  A.  Luce, 31 

William  L.  Vincent, 13 

Tristram  Mayhew,  \      Selectmen 

Smith  Mayhew,        >  of 

Moses  C.    Vincent,  '     Chilmark. 
Attest :  Jas.  N.  Tilton. 


Two  objections  are  made  to  the  validity  of  this  return.  1,  That 
it  does  not  purport  to  be  a  copy  of  the  town  record  ;  and  2,  That 
it  does  not  purport  to  be  attested  by  any  town  clerk. 

The  statutes  from  which  the  powers  and  duties  of  the  board 
of  examiners  are  derived  are  the  Rev.  Sts.  c.  14,  §§  17,  18,  19, 
38  ;  Sts.  1854,  c.  77  ;  1855,  c.  3.* 

It  is  obvious  from  an  examination  of  these  statutes  that  the 
duties  of  the  board  of  examiners  are  simply  ministerial.  By  §  18 
of  c.  14  of  the  Rev.  Sts.,  they  are  required  to  meet  at  a  time 
specified,  and  "  to  examine  the  returns  of  votes  transmitted  to 
them,  and,  if  any  person,  shall  be  found  to  have  a  majority  of  all 
the  ballots,"  to  give  the  person  elected  written  notice  of  his 
election.  By  subsequent  statutes  the  time  of  their  meeting  is 
changed,  and  a  "  plurality  "  of  votes  is  substituted  for  a  "  major- 
ity." They  are  not  made  a  judicial  tribunal,  nor  authorized  to 
decide  upon  the  validity  or  the  fact  of  the  election,  in  any  other 
mode,  than  by  an  examination  of  "  the  returns  "  made  to  them, 
according  to  law.  They  are  not  required  or  authorized  to 
hear  witnesses  or  weigh  evidence.  They  have  no  power  to  send 
for  persons  or  papers.  If  one  result  appears  upon  the  returns, 
and  another  is  the  real  truth  of  the  case,  they  can  only  act  u[)on 

,    *  Pub.  Sts.,  ch.  7,  {§  48,  49. 


422  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

the  former.  If  they  have  done  theu-  duty,  the  remedy  of  the 
persou  actually  elected  to  the  office  is  not  to  be  sought  in  a 
mandamus.  This  court  has  no  power  to  direct  public  officers  to  do 
any  more  than  their  duty,  or  anything  different  from  their  duty. 

The  decision  of  the  case  must  then  depend  upon  the  answer, 
to  be  given  to  the  question,  whether  the  paper  received  from  the 
town  of  Chilmark  was  a  "  return  "  such  as  the  law  prescribes,  and 
which  the  board  of  examiners  were  required  by  law  to  examine 
and  treat  as  a  legal  return.  The  court  are  of  opinion  that  it  was 
not.  It  does  not  purport  t  >  bo  a  cop}'  of  a  town  record,  but  is  a 
certificate,  apparently  original,  of  certain  facts  which  it  recites.  It 
is  not  attested  b}'  any  person  describing  himself,  or  in  any  way 
appearing  upon  the  paper  to  be,  the  town  clerk  of  Chilmark.  The 
board  of  examiners  had  no  official  knowledge,  and  were  not 
required  to  ascertain  or  know,  that  the  person  signing  his  name 
''Jas.  N.  Tilton"was  in  fact  such  town  clerk.  The  "return" 
required  b^^  Rev.  Sts.  c.  14,  §  17,  is  a  cop}'^  of  the  town  record, 
signed  b}'  the  selectmen  and  attested  by  the  town  clerk.  The 
board  of  examiners  were  not  required  by  law  to  receive,  examine, 
or  treat  as  a  return  any  paper  which  did  not  appear  upon  its  face 
to  be  such  a  return.  The  respondents  having  therefore  sustained 
the  issue  raised  upon  their  answers,  are  entitled  to  a  judgment  for 
their  costs. 

Judgment  for  the  respondents  for  costs. 


Caleb  Lombard  v.  Benjamin  Oliver  and  others. 

3  Allen,  1  (1861). 

No  action  lies  against  tlie  selectmen  of  a  town  for  refusing  to  put  upon  the  list  of 
voters  therein  the  name,  and  rejecting  the  vote,  of  one  who  was  not  a  legal  voter, 
although  the  proof  produced  by  him  to  them  was  sufficient  to  establish,  prima  facie. 
his  right  to  vote;' and  they  may  prove  at  the  trial  that  in  fact  he  was  not  a  legal 
voter. 

Tort  against  the  selectmen  of  Wellfleet,  for  refusing  to  put  the 
plaintiff's  name  upon  the  list  of  voters,  and  rejecting  his  vote,  at 
several  elections  in  that  town. 

At  the  trial  in  the  superior  court,  the  defendants  offered  evidence 
to  prove  that  the  plaintiff  was  not  legally  ^entitled  to  vote  in  Well- 
fleet,  at  the  several  times  when  his  vote  was  refused  by  the  defend- 
ants ;  but  Vase,  J.,  ruled  that  no  facts  in  reference  to  his  right  to 


OPINIONS   OF    THE    COURT.  423 

vote  could  be  proved,  which  were  not  laid  before  the  defendants 
when  he  made  his  claim,  or  which  were  not  then  personally  known 
to  them.  The  jury  returned  a  verdict  for  the  plaintiff  with  §600 
damages,  and  the  defendants  alleged  exceptions. 

Other  facts  and  rulings  in  the  case  became  immaterial. 

H.  A.  ScuDDER  for  the  defendants. 

B.  F.  AND  H.  L.  Hallett, /or  the  plaintiff,  cited  Blanchard  v. 
Stearns,  5  Met  298  ;  Waite  v.  Woodward,  10  Cush.  143  ;  Harris 
V.  Wkitcomb,  4  Gray,  435  ;  Rev.  Sts.  o.  3  §  9. 

BiGELOW,  C.  J.  :  In  the  trial  of  this  ease,  one  of  the  issues 
which  was  presented  by  the  pleadings  seems  to  have  been  over- 
looked by  the  court. 

The  onl}'  question  which  appears  to  have  been  regarded  as  open 
before  the  jury  was,  whether  the  plaintiff,  before  offering  his  vote 
at  the  meetings  of  the  inhabitants  of  the  town  alleged  in  the  decla- 
ration, furnished  the  defendants  sufficient  evidence  of  his  having 
the  legal  qualifications  of  a  voter.  It  is  true  that  the  plaintiff,  in 
order  to  maintain  his  action,  was  bound  to  assume  the  allinuutive 
of  this  issue,  and  to  prove  it  to  the  reasonable  satisfaction  of  the 
jury,  and  if  he  established  it,  he  would  thereby  make  out  a  prima 
facie  case,  which,  in  the  absence  of  controlUng  proof,  would  entitle 
him  to  a  verdict.  Rev.  Sts.  c.  3,  §  9  ;  Gen.  Sts.  c.  6,  §  11  ;  c.  7, 
§  10.*  Blanchard  v.  Stearns,  5  Met.  298.  But  it  is  a  mistake  to 
suppose  that  this  was  the  onl}'  question  of  fact  which  was  open  on 
the  pleadings, 

Another  material  issue  was  raised  by  the  answer.  The  defend- 
ants alleged  that  the  plaintiff,  at  the  time  he  sought  to  have  his 
name  placed  on  the  list  and  claimed  the  right  to  deposit  his  vote, 
was  not  in  fact  a  legal  voter  in  the  town.  In  support  of  this  aver- 
ment in  their  answer,  the  defendants  offered  evidence  which  was 
rejected  by  the  court.  But  a  little  attention  to  the  nature  of  the 
action,  and  to  the  grievance  of  wliich  the  plaintiff  complains  will 
show  that  this  allegation,  if  established  b}'  proof,  is  a  perfect  bar 
to  the  action.  It  is  the  legal  right  to  vote  which  the  plaintiff  seeks 
by  this  suit  to  vindicate.  It  is  for  a  violation  of  this  right  that  he 
claims  a  compensation  in  damages.  He  alleges  that  it  was  by  the 
wrongful  acts  and  refusals  of  the  defendants,  in  their  capacity  of 
selectmen  of  the  town,  that  he  was  deprived  of  the  privilege  of 
exercising  the  elective  franchise,  to  which  he  was  entitled  as  a 
legal  voter  in  the  town.  The  gist  of  his  action  is  not  that  the 
defendants  refused  to  put  his  name  on  the  list,  or  rejected  his 
vote.     These  are  immaterial  averments,  unless  coupled  with  the 

•  Pub.  Sts.,  ch.  7,  ^  10. 


424  MASSACHUSETTS    ELECTION   CASES  —  1853-1885. 

Other  and  fundamental  fact,  that  he  was  at  the  time  a  legal  voter 

in  the  town. 

If  he  did  not  possess  the  legal  qualifications  of  a  voter,  then  no 
wron"-  was  done  to  hira  by  the  defendants  for  which  he  can  main- 
tain  an  action.  On  the  contrary',  if  his  name  had  been  placed  on 
the  list  and  his  vote  had  been  received  by  the  defendants,  he  would 
have  thereby  gained  no  right,  but  only  obtained  the  means  by 
which  he  might  have  deposited  unlawful  votes,  and  thereby  sub- 
jected himself  to  indictment. 

The  misapprehension  at  the  trial  probably  arose  from  an  erro- 
neous application  of  the  provisions  contained  in  Rev.  Sts.  c.  3,  §  9, 
as  explained  and  expounded  in  the  case  of  Blanchard  v.  Stearns, 
ubi  supra.  That  enactment  followed  substantiall}'  the  provision 
embodied  in  tlie  previous  statute  of  1822,  c.  104,  §  4.  Previously 
to  the  passage  of  the  latter  statute,  under  the  decisions  of  this 
court,  selectmen  were  held  liable  to  actions  for  refusing  to  receive 
the  vote  of  a  person  legally  qualified,  although  they  acted  accord- 
ing to  their  bast  judgment,  without  malice,  and  without  being 
guilty  of  any  negligence  in  the  performance  of  their  duty. 

It  is  obvious  that  this  rule  of  law  would  operate  with  great  hard- 
ship on  public  oflScers,  upon  whom  was  imposed  the  diflScult  task  of 
deciding  suddenly,  without  opportunity  for  examination  of  facts, 
upon  the  qualifications  of  voters.  The  object  of  the  provisions  of 
the  statutes  above  cited  was  to  relieve  in  some  degree,  the  harsh 
operation  of  this  rule  of  law,  bj'  exempting  selectmen  from  labil- 
ity for  omitting  the  name  in  the  list  of  voters  and  for  refusing  the 
vote  of  any  person,  unless  he  should,  before  offering  his  vote,  fnr- 
nish  them  with  sufficient  evidence  of  his  having  the  legal  qualifi- 
cations to  entitle  him  to  vote.  It  cannot  be  contended  that  these 
statutes  were  designed  to  confer  any  new  right  on  the  voter.  On 
the  contrary,  they  cast  upon  him  a  new  burden.  They  compelled 
hira  to  be  read}'  with  proof  of  his  right  to  exercise  the  elective 
franchise,  in  order  that  he  might  offer  it  to  the  selectmen,  and 
exempted  them  from  liability  in  case  of  refusal  to  allow  him  to 
vote,  unless  the  evidence  should  be  found  sufficient  to  show  that 
such  refusal  was  erroneous.  But  the}'  gave  him  no  new  cause  of 
action. 

They  did  not  entitle  him  to  recoA^er,  if  he  was  not  a  legal  voter 
in  the  town,  merely  because  he  offered  to  the  selectmen  evidence 
which  prima  fade  established  his  right  to  vote.  If  such  was  the 
effect  of  the  statute,  then  it  would  follow  that  any  person  who,  by 
producing  false  testimony  before  the  selectmen,  or  by  suppressing 
facts  having  a  material  bearing  on  the  question,  might  make  out 
before  them  an  apparent  right  to  vote,  might  also  sustain  an  action 


OPINIONS   OF   THE    COURT.  425 

for  the  rejection  of  bis  vote,  although  it  might  be  shown  that  in 
fact  he  was  not  at  the  time  a  legal  voter  in  the  town.  There  is 
nothing  in  the  statutes  to  lead  to  such  an  absurd  conclusion. 

The  truth  is,  that  in  actions  of  Ihis  nature  two  issues  may  be 
.presented  on  which,  if  properly  raised  by  the  pleadings,  it  is  the 
duty  of  the  jury  to  pass.  One  is  the  question  whether  the  plainlitf, 
at  the  time  he  claimed  the  right  to  vote,  seasonably  submitted  to 
the  selectmen  sufficient  evidence  that  he  was  possessed  of  the 
qualifications  entitling  him  to  vote.  If  he  did,  then  this  evidence 
would  make  out  a  prima  facie  case  which  would  entitle  him  to  a 
verdict  in  the  absence  of  controlling  proof.  But  it  would  be  com- 
petent for  the  defendants  to  raise  another  issue,  and  to  show, 
although  he  did  offer  evidence  to  them,  which  if  it  was  true  and 
embraced  all  the  facts  bearing  on  the  question,  would  have  entitled 
him  to  vote,  that  nevertheless  this  evidence  was  false,  or  that  fads 
were  suppressed  or  kept  back,  which  proved  that  at  the  time  he 
was  not  a  legal  voter  in  the  town.  If  such  evidence  was  offered, 
aud  it  appeared  to  the  satisfaction  of  the  jury  that  the  plaintiff  had 
no  legal  right  to  vote  at  the  time  his  vote  was  tendered  and  refused, 
then  the  plaintiff  must  fail  in  his  action,  because  in  such  case,  the 
defendants  would  have  deprived  him  of  no  right  and  have  done 
him  no  wrong  by  the  refusal  of  his  vote. 

Inasmuch  as  the  jury  were  precluded  by  the  ruling  of  the  court 
from  considering  one  of  the  main  issues  raised  at  the  trial,  and  as 
many  of  the  incidental  questions  raised  by  the  exceptions  may 
become  immaterial  upon  another  trial,  we  do  not  deem  it  necessary 
at  this  time  to  express  smy  opinion  concerning  them. 

Exceptions  sustained. 


Caleb  Lombard  v.  Benjamin  Oliver  and  others. 

7  Allen,  155  (1863). 

In  an  action  against  the  selectmen  of  a  town  for  refusing  to  pnt  the  plaintifiTs 
name  upon  the  list  of  voters  and  rejecting  his  vote,  the  plantiff  may  prove  his  owti 
statements  i-elating  to  his  residence,  made  to  the  selectmen  before  offering  liis  vote, 
not  under  oath,  for  the  pm-pose  of  furnishing  to  them  evidence  of  his  having  the 
legal  qualifications  of  a  voter;  and  he  may  testify  to  his  own  intention  in  leaving  the 
town  for  a  prolonged  absence,*  previously  to  the  time  of  the  acts  complained  of. 

Tort  against  the  selectmen  of  Wellfleet,  for  refusing  to  put  the 


426  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

plaintifTs  name  upon  the  list  of  voters,  and  rejecting  his  vote  at 
several  eleclions  in   that  town. 

At  the  second  trial  in  the  superior  court,  before  Russell,  J.,  after 
the  decision  reported  in  3  Allen,  1,  the  plaintiff,  for  the  purpose  of 
showingr  that  before  offering  his  vote  he  furnished  to  the  defend- 
ants  sufficient  evidence  of  his  having  the  legal  qualiQcations  of  a 
voter,  was  allowed  to  prove  certain  statements  relating  to  his  resi- 
dence, made  by  him  before  the  board  of  selectmen,  not  under  oath. 

To  these  the  defendants  objected,  on  the  ground  that  statements 
not  under  oath  were  not  competent  testimony  before  them.  It 
was  not  proved  or  claimed  that  they  made  any  such  objection  at  the 
time,  or  that  they  tendered  an  oath  to  the  plaintiff. 

It  appeared  that  the  plaintiff  in  1857  went  from  Wellfleet  to 
Roxbury,  and  that  he  passed  the  most  of  the  time  in  the  latter 
place  down  to  the  time  of  the  acts  complained  of  in  1859.  The 
plaintiff  was  a  witness,  and  his  counsel  asked  him  what  his  inten- 
tion was  in  leaving  Wellfleet ;  to  this  question  the  defendants  ob- 
jected, but  the  judge  overruled  the  objection,  and  the  plaintiff 
replied  that  he  did  not  intend  to  remove  from  Wellfleet. 

The  jury  returned  a  verdict  for  the  plaintiff,  with  $800  damages, 
and  the  defendants  alleged  exceptions. 

H.  A.  ScuDDER /or  the  defendants. 
G.  Marston/o?-  the  plaintiff. 

BiGELOw,  C.  J. :  We  cannot  doubt  that  the  testimony  of  the 
plaintiff  concerning  the  statement  made  by  him  of  his  qualifica- 
tions as  a  voter  to  the  defendants,  at  the  time  he  sought  to 
have  his  name  put  upon  the  list  of  voters,  was  competent  evi- 
dence and  should  have  been  admitted.  He  was  bound  to  show, 
in  order  to  maintain  this  action,  that  he  had  offered  sufficient  evi- 
dence to  the  defendants  to  authorize  and  require  them  to  put  his 
name  on  the  list  B  anchard  v.  Steaj-ns,  5  Met.  302.  His  own 
statement  of  facts  bearing  on  the  question  of  his  residence  in  the 
town  was  a  part  of  this  evidence,  which  they  could  not  properly 
overlook  or  disregard,  in  determining  on  his  right  to  vote,  unless 
there  was  good  reason  for  disbelieving  or  rejecting  it. 

The  proceedings  before  selectmen  of  towns,  and  mayors  and 
aldermen  of  cities,  under  Rev.  Sts  ,  c.  3,  §§  G,  7  (Gen.  Sts.,  c.  G, 
§§  G,  7),*  are  not  intended  to  have  the  formality  and  regularity  of 
judicial  proceedings.  They  are  in  their  nature  summary.  Nor  is 
it  the  design  of  the  statute  that  the  investigation  should  be  con- 
ducted under  a  strict  application  of  the  rules  of  evidence  at  com- 
mon law.  This  would  be  quite  impraticable  and  would  defeat  the 
great  object  of   the  statute,  which  was  to  enable  voters,  by   an 

*  Pub.  Sts.,  ch.  6,  §§  23-25. 


OPINIONS    OF   THE    COURT.  427 

application  to  the  selectmen  during  a  brief  interval  before  the 
holding  of  an  election  to  cause  their  names  to  be  put  upon  the 
list.  Certainly  it  would  work  very  great  injustice,  if  the  evidence 
of  a  voter's  qualifications  was  offered  and  received  by  the  select- 
men without  objection  by  them  as  to  its  form  or  nature,  or  without 
any  requisition  that  it  should  be  under  the  sanction  of  an  oath  ; 
and  at  the  same  time  that  his  claim  should  be  rejected  for  a  mere 
informality  of  proof,  without  any  knowledge  by  him  of  the  ground 
on  which  his  right  to  vote  was  denied.  Good  faith  and  fair  deal- 
ing would  require  that  the  voter  should  be  informed  of  any  defect 
in  the  form  or  mode  of  proof,  if  the  selectmen  intended  to  reject 
his  claims  on  that  ground,  so  that  he  might  cure  the  irregularity 
or  supply  the  deficiency.  In  the  case  before  us  it  does  not  appear 
that  any  objection  was  made  to  the  statements  of  the  plaintiff  at 
the  time  he  made  them  to  the  selectmen. 

He  was  not  informed  that  they  were  incompetent,  or  that  they 
would  not  be  received  and  regarded  unless  made  under  oath.  For 
auglit  tliat  appears,  he  was  left  to  suppose  that  the  facts  stated 
by  him  were  supported  bjj^  competent  evidence.  Under  such  cir- 
cumstances, we  are  of  opinion  that  the  defendants  were  stopped 
from  setting  up,  in  subsequent  proceedings  against  them,  the 
objection  that  his  statements  must  now  be  rejected  as  part  of  the 
evidence  laid  before  them,  because  he  was  not  a  competent  wit- 
ness, or  for  the  reason  that  he  did  not  testify  under  the  sanction 
of  an  oath. 

We  also  think  that,  upon  another  and  distinct  ground,  evidence 
of  the  statements  made  by  the  voter  to  the  selectmen  was  compe- 
tent on  the  trial  of  the  issue  in  this  action.  It  is  provided  by 
Rev.  Sts.,  c.  3,  §  8  (Gen.  Sts.,  c.  G,  §  10),  tliat  whoever  gives  a 
false  name  or  a  false  answer  to  selectmen,  when  in  session  for  the 
purpose  of  receiving  evidence  of  the  qualifications  of  persons 
claiming  a  right  to  vote,  shall  forfeit  the  sum  of  thirty  dollars  for 
each  offence.  This  enactment  affords  a  clear  and  direct  implica- 
tion that  the  statements  of  persons  concerning  their  own  qualifi- 
cations as  voters  are  not  only  competent  evidence  to  be  received  by 
selectmen,  but  that  it  is  not  necessary  that  they  should  be  made 
under  oath. 

The  plaintiff  was  a  competent  witness  on  the  trial  of  this  ac- 
tion, under  Gen.  Sts.,  c.  131,  §  14.  The  question  of  his  intention 
in  leaving  the  town  for  a  prolonged  absence  was  material  in  its 
bearing  on  the  issue  before  the  jury,  and  his  own  testimony  that 
he  did  not  thereby  intend  to  change  his  domicile  was  clearly  ad- 
missible.    Fisk  V.  Chester,  8  Gray,  506  ;    Thacher  v.   Phinney,  7 

All.  14G. 

Exceptions  overruled. 


428  MASSACHUSETTS    ELECTION   CASES  —  1853-1885. 


CASE   OF   SUPERVISORS   OF  ELECTION. 
114  Mass.  247  (1873). 

The  St.  of  1873,  c.  376,  §  1,  directing  the  justices  of  this  court  to  appoint  supervis- 
ors of  election,  is  unconstitutional  and  void. 

Petition  under  St.  1873,  c.  376,  §  1,  for  the  appointment  of 
supervisors  of  election.  The  petition  was  signed  by  five  legal 
voters  of  ward  3  in  the  city  of  Boston,  and  was  in  the  following 
words :  — 

"To  the  honorable  the  justices  of  the  supreme  judicial  court,  holden 
at  Boston,  within  and  for  the  county  of  Suffolk. 

"  Respectfully  represent  the  undersigned,  being  five  legal  voters  of 
ward  3  in  said  city  of  Boston,  that  they  desire  to  have  the  election  of 
state  and  county  oflBcers,  to  be  held  in  said  ward  on  the  fourth  day  of 
November  next,  guarded  and  scrutinized  as  provided  in  the  376th  chap- 
ter of  the  acts  of  1873,  and  they  respectfully  petition  that  supervisors  of 
election  may  be  appointed  and  commissioned  in  said  ward,  as  provided 
in  said  act.     And  your  petitioners  will  ever  pray." 

This  petition  was  presented  on  Oct.  24,  1873,  to  the  chief  justice, 
by  whose  order  notice  was  published  in  the  "  Boston  Daily  Adver- 
tiser" and  "  Boston  Post,"  to  all  persons  interested  in  the  matter 
thereof,  or  in  a  like  petition  in  relation  to  any  other  ward,  to  appear 
before  the  justices  of  the  supreme  judicial  court,  at  the  court  house 
in  Boston,  on  October  27,  at  two  o'clock  in  the  afternoon,  that  they 
might  then  and  there  show  cause,  if  any  they  had,  why  the  prayer 
of  the  petition  should  or  should  not  be  granted. 

At  the  time  appointed,  the  matter  was  argued  by  L.  M.  Child 
foi^  the  petitioners,  and  by  P.  A.  Collins,  contra,  before  Gray,  C. 
J.,  Wells,  Ames,  Morton  and  Endicott,  J.J.,  and  after  a  con- 
sultation of  all  the  judges,  their  opinion  was  delivered  on  the  same 
day  by 

Gray,  C.  J. :  This  application  is  made  under  the  St.  of  1873,  c. 
37G,  §  1,  which  provides  as  follows:  —  "Whenever,  prior  to  an 
election,  five  legal  voters  of  any  ward  of  a  city  shall  make  known 
in  writing  to  a  justice  of  the  supreme  judicial  court,  in  term  time 
or  vacation,  their  desire  to  have  such  election  guarded  and  scruti- 
nized, it  shall  be  the  duty  of  sucli  justice,  upon  such  notice  as  he 
shall  deem  meet,  or  without  notice,  prior  to  such  election,  to 
appoint  and  commission  two  legal  voters  of  such  ward,  who  shall 


OPINIONS   OF   THE   COURT.  429 

bo  of  diflerent  political  i)arties,  and  shall  be  known  and  designated 
as  supervisors  of  election.  Before  entering  upon  tbe  duties  of 
their  office,  the  said  supervisors  shall  he  duly  sworn  to  the  faithful 
and  impartial  discharge  of  the  same." 

As  the  application  appeared  to  involve  a  grave  question  of  con- 
stitutional law,  and  a  similar  application  might  according  to  the 
terms  of  the  statute  be  presented  to  a  justice  of  this  court  at  any 
time,  the  matter  has  been  argued  before  five  of  the  judges,  and  our 
brethren  who  could  not  attend  at  the  argument  have  taken  part  in 
the  consultation. 

The  intention  of  the  legislature  is  clearly  expressed  that  super- 
visors of  elections  should  be  appointed  by  the  justices  of  this  court. 
The  question  is  whether  the  statute  is  constitutional. 

Tbe  Constitution,  being  the  fundamental  law  of  the  Common- 
wealth, established  by  tlie  people,  binds  and  controls  all  their 
servants,  legislative,  executive  and  judicial.  Every  person  chosen 
or  appointed  to  any  office  is  expressly  required,  before  entering 
upon  the  discharge  of  its  duties,  to  take  an  oath  to  support  tlie 
Constitution.  And  by  the  eighteenth  article  of  the  Declaration  of 
Rights  a  frequent  recurrence  to  the  fundamental  principles  of  the 
Constitution  is  declared  to  be  absolutely  necessary  to  preserve  the 
advantages  of  liberty  and  to  maintain  a  free  government. 

The  legislature  is  vested  by  the  Constitution  with  full  power 
and  authority  from  time  to  time  to  make,  ordain  and  estal)lish  all 
manner  of  wholesome  and  reasonable  orders,  laws,  statutes  and 
ordinances,  directions  and  instructions,  "  so  as  the  same  be  not 
repugnant  or  contrary  to  this  Constitution,"  as  the}'  shall  judge  to 
be  for  the  good  and  welfare  of  this  Commonwealth,  and  for  the 
governing  and  ordering  thereof,  and  of  the  subjects  of  the  same. 
Every  reasonable  inference  is  to  be  drawn  in  favor  of  the  validity  of 
the  acts  of  each  branch  of  the  government.  But  whenever  appli- 
cation is  made  to  the  judiciary  to  carry  into  etftct  an}'  statute  in  a 
particular  case,  and  the  statute  in  question  appears  to  be  clearly 
repugnant  to  the  Constitution,  it  is  the  duty  of  the  judges  to  obey 
the  Constitution  and  disregard  the  statute. 

The  people  of  Massachusetts,  warned  by  experience  of  the  incon- 
veniences and  dangers  arising  from  the  vesting  of  incompatible 
puwers  in  the  same  persons  under  the  royal  government  while  this 
state  was  an  English  province,  have  made  most  careful  provision 
for  sei)arating  the  three  great  departments  of  government,  and 
for  removing  the  judiciary,  and  especiall}'  this  court,  from  political 
influences  of  evei-y  kind,  as  far  as  possible. 

The  final  article  of  the  Declaration  of  Rights  declares  that  "  in 
the  government  of  this  Commonwealth  the  legislative  department 


430  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

shall  never  exercise  the  executive  and  judicial  powers  or  either  of 
them  ;  the  executive  shall  never  exercise  the  legislative  or  judicial 
powers,  or  either  of  them  ;  the  judicial  shall  never  exercise  the 
executive  or  legislative  powers,  or  either  of  them  ;  to  the  end  it 
may  be  a  government  of  laws  and  not  of  men."  The  Constitu- 
tion further  expressly  prohibits  the  judges  of  this  court  to  hold  a 
seat  in  the  house  of  representatives,  senate  or  council,  or  any  other 
office  or  place  under  the  authority  of  this  Commonwealth,  except 
that  of  justices  of  the  peace  through  the  state  ;  and  requires  all 
commissions  to  be  signed  by  the  governor,  and  attested  by  the 
secretary  or  his  deputy,  and  to  have  the  great  seal  of  the  Common- 
wealth affixed  thereto. 

The  justices  of  this  court,  as  incidental  to  the  large  and  varied 
judicial  powers  and  jurisdiction  conferred  upon  them  by  the  Con- 
stitution and  laws,  embracing  cases  criminal  and  civil,  in  common 
law,  equity,  probate  and  divorce,  may  be  and  have  been  by  many 
statutes  autliorized  to  appoint  subordinate  officers  of  various  kinds 
to  assist  in  the  performance  of  their  judicial  duties,  such  as  audi- 
tors, special  masters  in  chancer}',  CDmmissioners  to  take  depositions 
in  other  States  in  cases  pending  here,  commissioners  to  take  bail, 
commissioners  for  the  partition  of  lands,  division  of  flats,  or  the 
setting  off  of  dower,  commissioners  of  sewers,  or  for  the  improve- 
ment of  meadows  and  low  lands,  and  commissioners  to  adjust  the 
rights  of  transportation  and  modes  of  connection  between  connect- 
ing lines  of  railroad,  or  to  assess  the  expenses,  as  between  different 
counties,  towns  and  other  corporations,  of  maintaining  roads  or 
bridges.  Parts  of  the  duties  performed  by  some  of  these  officers 
in  carrying  out  their  functions  are  executive  in  their  nature,  and 
of  a  class  which  might  be  imposed  by  law  upon  strictly  executive 
officers.  But  all  the  officers  above  enumerated,  when  appointed 
by  the  court,  are  by  express  requirement  or  necessary  implication 
obliged  to  return  a  report  of  their  doings  to  the  court  for  its  judi- 
cial action. 

The  judges  ma}-  also  be  authorized  by  law,  except  so  far  as 
otherwise  expresslj'  provided  by  the  Constitution,  to  appoint  clerks 
of  courts.  But  the  duties  of  such  clerks,  are  in  no  sense  executive. 
the_y  are  merely'  ministerial  and  incident  to  the  administration  of 
justice. 

On  like  grounds,  the  courts  are  authorized,  in  the  absence  of  the 
official  prosecutor,  to  appoint  a  suitable  person  to  perform  Ins 
duties  ;  and  to  appoint  all  officers  necessary  to  the  transaction  of 
their  business. 

The  courts  may  also  try  the  title  to  many  offices  by  mandamns, 
quo  warranto,  or  other  proper  process.    But  the  title  to  an  office  is 


OPINIONS   OF   THE    COURT.  431 

a  riglit  th.at  has  alwa^'s  baea  bold  to  be  a  proper  subjoot  of  jiilieial 
(locision,  except  when  the  Constitution  has  committed  it  to  other 
hands.  Analogous  to  this  is  the  power  conferred  on  this  court 
by  statute  to  remove  certain  officers,  and  thus  to  declare  a  for- 
feiture of  their  rights  and  a  determination  of  their  offices. 

The  power  of  naturalization  may  perhaps  be  considered  as  one 
of  the  powers  that  may  be  intrusted  by  the  legislature  in  its  dis- 
cretion to  one  or  another  department  of  the  government.  Before 
the  adoption  of  the  federal  Constitution,  it  was  habitually  exercised 
by  the  general  court  of  Massachusetts.  Since  the  adoption  of 
that  Constitution,  it  has  been  vested  by  the  Congress  of  the  United 
States,  with  the  assent  of  the  state  legislatures,  in  the  judicial 
tribunals  of  the  states,  as  well  as  in  those  of  tlic  nation.  As  it 
requires  a  final  determination  of  all  matters  of  law  and  fact  involved 
in  the  admission  of  the  applicant  to  citizenship,  it  may  appropri- 
ately be  made  a  subject  of  judicial  investigation  and  decision. 

The  St.  of  1873,  c.  376,  §§  2,  3,  declares  that  it  shall  be  the 
duty  of  the  supervisors  of  election  to  attend  the  ward  meetings  ; 
to  challenge  the  vote  of  any  person  whose  qualifications  thcj'  doubt ; 
to  remain  where  the  ballot  boxes  are  kept,  from  the  opening  of  the 
polls  until  all  the  votes  are  cast,  counted,  canvassed  and  sealed 
up,  and  the  certificates  and  returns  made  out ;  to  inspect  and 
scrutinize  the  manner  of  voting  and  the  method  of  keeping  and 
marking  the  check  list ;  to  count  and  canvass  ever}'  ballot  cast, 
and,  in-  the  event  of  a  disagreement  between  their  count  and  can- 
vass and  those  of  thn  ward  officers,  to  make  a  return  of  their  count 
and  canvass  to  the  ma3'or  and  aldermen. 

These  supervisors,  although  entrusted  with  a  certain  discretion 
in  the  performance  of  their  duties,  are  strictlj'  executive  officers. 
They  make  no  report  or  return  to  the  court  or  to  an}'  judge  thereof. 
Tiieir  duties  relate  to  no  judicial  suit  or  proceeding,  but  solely  to 
the  exercise  by  the  citizens  of  political  rights  and  privileges.  Wo 
are  unanimousl}'  of  opinion  that  the  power  of  appointing  such 
offi .ers  cannot  be  conferred  upon  the  justices  of  this  court  without 
violating  the  Constitution  of  the  Commonwealth.  We  cannot 
exercise  this  power  as  judges,  because  it  is  not  a  judicial  function  ; 
nor  as  commissioners,  because  the  Constitution  does  not  allow  us 
to  liold  an}'  such  office. 

Tlie  statute  in  question  can  find  no  support  in  the  act  of  Con- 
gress of  1871,  c.  99,  conferring  power  to  appoint  similar  officers 
upon  the  judges  of  the  circuit  court  of  the  United  States,  or  in  the 
action  of  those  judges  pursuant  thereto ;  because  the  Constitution 
of  the  United  States  does  not  so  explicitly  restrain  the  judges  from 
exercising  executive  or  political  functions  as  does  the  Constitution 


432  MASSACHUSETTS    ELECTION    CASES  —  1853-1885. 

of  this  Commonwealth  ;  and  because  the  circuit  judges  acted  indi- 
vidually and  without  opportunity  of  conference,  and,  so  far  as  we 
are  informed,  without  any  question  of  constitutional  power  being 

raised  or  argued. 

Petition  denied.* 


OPINION  OF  THE  JUSTICES  TO  THE  GOVERNOR  AND  COUNCIL. 

117MA.SS.  599  (1875). 

By  Chief  Justice   Gray,    and  Associate  Justices   Wells,  Colt,  Ames, 
MoRTOx,  ExDicoTT  and  Devens. 

It  is  tbe  duty  of  the  governor  and  council,  upon  application  of  a  person  claiming 
an  election  as  district  attorney,  to  recount  the  ballots  for  that  office,  duly  sealed  up 
and  preserved  under  the  St.  of  1874,  c.  37G,  ^  42,  4G,  47  (Pub.  Sts.  c.  7,  §<5  27,  31), 
which  were  cast  in  towns,  but  not  those  cast  in  cit'es,  and,  upon  comparison  of  the 
ballots  so  recounted  with  the  other  returns,  to  ascertain  which  of  the  persons  voted 
for  appears  to  be  elected. 

After  the  governor  and  council  have,  upon  the  application  of  a  person  claiming  an 
election  as  district-attorney,  recounted  certain  ballots  given  for  that  office,  and  have 
issued  a  certificate  of  election  to  the  person  appearing  to  be  elected,  they  have  no 
power  to  recount  other  ballots.  ' 

On  Februarj'  17,  187o,  the  following  order  was  passed  b}^  the 
governor  and  council,  and  on  February  27  transmitted  b}'  the 
governor  to  the  justices  of  the  supreme  judicial  court,  who  on 
March  5  returned  the  answer  which  is  subjoined. 

Ordered^  That  the  opinion  of  the  supreme  judicial  court  be  re- 
quested as  to  the  following  questions  : 

1.  Under  the  Constitution  and  laws  of  the  Commonwealth,  is  it 
the  duty  of  the  governor  and  council,  upon  application  of  a  person 
claiming  an  election  as  district  attorney,  to  recount  the  ballots  for 
said  office,  duly  sealed  up  and  preserved  under  the  provisions  of 
sections  42,  46  and  47  of  chapter  376  of  the  acts  of  1874,  and,  upon 
comparison  of  the  ballots  so  recounted  with  the  other  returns,  to 
ascertain  which  of  the  persons  voted  for  appears  to  be  elected  ? 

2.  If,  the  facta  being  as  set  forth  in  the  first  question,  a  recount 
of  certain  ballots  has  been  had,  and  a  certificate  of  election  issued 
to  the  person  appearing  to  be  elected  by  such  recount,  is  it  the 

*  By  the  St.  of  1874,  c.  37G,  §  58,  the  St.  of  1873,  c.  376,  is  repealed. 


OPINIONS    OF   THE    COURT.  433 

duty  of,  or  is  it  competent  for  the  governor  and  council,  upon 
another  application  by  the  same  person  for  a  recount  of  other  bal- 
lots, said  application  being  made  within  sixty  days,  and  said  sec- 
tions 42,  4()  and  47  being  duly  complied  with,  to  recount  such  other 
ballots,  and  for  the  governor  to  issue  a  certiftcate  of  election  to 
the  person  appearing  to  be  elected  by  such  recount? 

3.  Would  the  power  and  duty  of  the  governor  and  council  in 
the  premises  be  affected  by  the  fact  that,  pending  the  considera- 
tion of  the  second  application  above  referred  to,  another  governor 
and  council  had  been  elected  and  qualified  ? 

The  justices  of  the  supreme  judicial  court,  having  considered 
the  questions  upon  which  their  opinion  has  been  required  by  his 
excellency  the  governor  and  the  honorable  council,  respectfully 
submit  the  follovving  opinion  :  — 

The  nineteenth  article  of  amendment  of  the  Constitution  of  the 
Commonwealth,  which  requires  the  legislature  to  prescribe  by  gen- 
oral  law  for  the  election  by  the  people  of  sheriffs,  registers  of  pro- 
bate, commissioners  of  insolvency  and  clerks  of  courts  in  the 
several  counties,  and  district  attorneys  in  the  several  districts, 
leaves  the  term  of  office,  and  the  manner  of  receiving,  counting, 
declaring  and  returning  the  votes,  and  ascertaining  and  certifying 
the  results  of  the  election  to  be  regulated  by  the  legislature. 

The  seventh  chapter  of  the  General  Statutes  has  constituted  the 
governor  and  council  a  board  to  examine,  as  soon  as  maj-  be  after 
receiving  them,  the  returns  of  votes  from  the  various  cities  and 
towns  for  district  attorneys  and  other  officers  named  in  this  article 
of  the  Constitution  ;  and  requires  the  governor  forthwith  to  trans- 
mit to  such  persons  as  appear  to  be  chosen  to  such  offices  a  certifi- 
cate of  such  choice,  signed  by  the  governor,  and  countersigned  by 
the  secretar}'  of  the  Commonwealth. 

The  nature  of  the  duties  thus  imposed,  and  the  very  terms  of 
the  statute,  show  that  they  are  to  be  performed  without  unneces- 
sary delay,  and  that  the  certiflcate  issued  by  the  governor  to  any 
person  appearing  upon  such  examination  to  be  elected  is  the  final 
and  conclusive  evidence  of  the  determination  of  the  governor  and 
council  as  to  his  election. 

No  provision  was  made  by  the  General  Statutes  for  the  preser- 
vation or  recount  of  the  original  ballots. 

The  one  hundred  and  forty- fourth  chapter  of  the  statutes  of  1863 
provided  that  the  ballots  given  in  all  elections  in  cities  for  United 
States,  state,  count3',  city  or  ward  officers,  should  be  sealed  up  in 
an  envelope  by  the  ward  officers,  and  preserved  by  the  city  clerk 
for  at  least  sixty  days  ;  enabled  the  mayor  and  aldermen,  upon  the 


434  MASSACHUSETTS    ELECTION   CASES  —  18o3-1885. 

representation  of  ten  citizens  of  any  ward,  and  witliin  the  time  pre- 
scribed by  law  for  examining  tlie  returns  and  determining  the  results 
of  the  election,  to  examine  the  ballots  and  cause  the  return  of  the 
ward  to  be  amended  accordingly  ;  and  further  provided  that  if, 
within  sixty  days  of  an  election,  any  person  who  received  votes  for 
any  office  should  serve  upon  the  city  clerk  "  a  written  notiQcation, 
claiming  an  election  to  such  office,  and  declaring  an  intention  to 
contest  the  right  of  any  person  who  has  received  or  who  may 
receive  a  certificate  of  election  for  the  same,  the  city  clerk  shall 
rv^tain  such  ballots,  scaled  as  aforesaid,  subject  to  the  order  of  the 
body  to  which  such  person  shall  claim  to  have  been  elected,  or 
until  such  claim  shall  have  been  withdrawn  or  finally  decided." 

This  last  provision  confers  no  power  to  recount  the  original  bal- 
lots, but  fcimply  provides  for  their  preservation  as  evidence  until 
the  contested  election  is  determined  by  any  board,  body  or  tri- 
bunal in  the  exercise  of  the  powers  otherwise  vested  in  it  by  Con- 
stitution or  statute.  The  words  "  subject  to  the  order  of  the  body 
to  which  such  person  shall  claim  to  have  been  elected,"  are  adapted 
to  the  case  of  a  person  claiming  to  be  elected  a  member  of  a  body 
which  is  the  judge  of  the  elections,  returns  and  qualifications  of  its 
members,  as  the  national  house  of  representatives  is  by  the  Con- 
stitution of  the  United  States,  each  branch  of  the  general  court  by 
the  Constitution  of  the  Commonwealth,  and  the  board  of  aldermen 
and  common  council  of  cities  by  municipal  charters  ;  but  they  can 
have  no  application  to  the  governor  and  council  in  the  examina- 
tion of  the  returns  of  votes  for  an  office  which  does  not  constitute 
the  person  elected  to  it  a  member  of  their  board. 

It  follows  that  the  statute  of  1863  conferred  upon  the  governor 
and  council  no  authority  to  recount  the  ballots  for  the  office  of  dis- 
trict attorney. 

No  provision  having  been  previously  made  for  the  preservation 
and  recount  of  ballots  in  towns,  b3^  the  municipal  officers  or  other- 
wise, the  fortieth  chapter  of  the  statutes  of  1871  provided  that,  at 
all  elections  in  towns  for  officers  other  than  town  officers,  the  bal- 
lots should  be  sealed  up  in  an  envelope  by  the  selectmen,  and  pre- 
served by  the  town  clerk  sixty  days,  "  and  if  within  that  time  any 
person  voted  for  serves  notice  on  him  in  writing,  claiming  an  elec- 
tion and  desiring  a  recount  of  said  ballots,  the  clerk  shall  con- 
tinue to  hold  such  envelope,  subject  to  the  order  of  the  legislative 
bod}'  to  which  such  person  claims  an  election,  or,  in  other  cases, 
of  the  board  requbed  by  law  finally  to  examine  the  returns  and 
issue  certificates  of  election  ;  and  in  all  such  cases  said  legislative 
body  or  board  may  take  and  open  said  envelope  and  recount  the 
baUots  thus  preserved." 


OPINIONS    OF   THE    COUET.  435 

Under  that  statute,  the  governor  and  council  must  be  deemed 
"  the  board  required  by  law  finally  to  examine  the  returns  and  issue 
certificates  of  election  "  to  the  office  of  district  attorney,  and  con- 
sequently authorized  to  recount  the  ballots,  so  scaled  up  and  pre- 
served, for  any  person  for  that  office,  and  to  take  into  considera- 
tion the  ballots  so  recounted,  in  connection  with  the  other  returns, 
in  ascertaining  which  of  the  persons  voted  for  appears  to  be 
elected. 

But  this  authority  to  recount  the  ballots  is  incidental  to  the  pow- 
ers conferred  by  the  General  Statutes  to  examine  tite  returns  and 
issue  a  certificate  of  election,  and  does  not  warrant  tlie  recall  of  a 
certificate  once  issued,  or  the  issue  of  a  second  certificate. 

The  three  hundred  and  sevent3--sixth  chapter  of  tlie  statutes  of 
1874  contains  a  re-enactment,  in  sections  40-42,  of  the  provis- 
ions of  the  statute  of  1863,  and  in  sections  46-48,  of  those  of  the 
statute  of  1871  ;  and  in  section  58,  repealing  all  those  provisions, 
declares  that  the  provisions  of  this  act,  so  far  as  they  are  the  same 
as  those  of  existing  laws,  shall  be  construed  as  a  continuation  of 
such  laws,  and  not  as  new  enactments. 

From  these  considerations  it  follows  that  the  first  question  pro- 
posed must  be  answered  in  the  affirmative  so  far  as  it  relates  to 
ballots  in  towns,  and  in  the  negative  so  far  as  it  relates  to  ballots 
in  cities ;  and  that  the  second  and  third  questions  proposed  must 
be  answered  in  the  negative. 


-o"- 


Boston,  March  5,  1875. 


OPINION   OF  THE  JUSTICES  TO  THE   HOUSE   OF  REPRE- 
SENTATIVES. 

122  Mass.  594  (1877). 

By    Chief  Justice  Gray,  and  Associate  Justices   Colt,  Ames,  Moutox, 
ExDicoTT,  Deven's  and  Lord. 

The  provision  of  the  twenty-first  article  of  araendracnt  of  the  Constitution  of  the 
Commonwealth,  which  requires  every  representative  in  the  general  court  to  have 
been  for  one  year  at  least  next  preceding  his  election  "an  inhabitant  of  the  district 
for  which  he  is  chosen,"  is  satisfied  by  his  having  dwelt  or  had  his  home  within  the 
district  for  that  time ;  and  a  person,  otherwise  qualified,  who  having  been  an  alien, 
has  been  naturalized  ^vithin  the  year,  is  eligible  as  a  representative.    Under  the  Con- 


436  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

stitution  of  the  Commonwealth,  an  alien  must  be  naturalized  before  he  can  become 
eligible  as  a  raemlier  of  the  house  of  representatives. 

The  following  order  was  passed  b^'  the  house  of  representatives 
on  Feb.  26,  1877,  and  on  February  28,  transmitted  by  the  speaker 
to  the  justices  of  the  supreme  judicial  court,  who  on  March  7, 
returned  the  answer  which  is  subjoined 

Ordered,  That  the  opinion  of  the  justices  of  the  supreme  judicial 
court  be  required  upon  the  following  questions  of  law,  viz. : 

1.  What  is  the  meaning  of  the  word  "  inhabitant,"  as  used  in 
article  21  of  the  amendments  to  the  Constitution  of  Massachusetts, 
in  the  provisions  relating  to  the  qualifications  of  representatives  ? 

2.  Is  a  person,  otherwise  qualified,  eligible  as  a  member  of  this 
house,  who,  having  been  an  alien,  has  been  naturalized  within  one 
year  next  preceding  his  election  ? 

3.  Must  an  alien  be  naturalized  before  he  can  become  eligible  as 
a  member  of  this  house  ? 

The  justices  of  the  supreme  judicial  court,  having  considered 
the  questions  proposed  b}^  the  Honorable  House  of  Representatives, 
respectfully  submit  the  following  opinion  : 

The  general  principles  and  the  rules  of  construction,  which  must 
guide  us  in  answering  these  questions,  are  clearl}'  set  forth  in  an 
opinion  submitted  to  the  Honorable  House  in  1811  by  Chief  Justice 
Parsons  and  Justices  Sewall  and  Parker  (each  afterwards  chief 
justice),  printed  in  full  as  a  supplement  to  the  seventh  volume  of 
the  Massachusetts  Reports,  and  in  the  Reports  of  Controverted 
Elections,  published  in  pursuance  of  a  resolve  of  the  general  court 
in  1852,  and  from  which  it  is  sufficient  to  quote  a  few  sentences. 

"  We  assume,  as  an  unquestionable  principle  of  sound  national  pblicy 
in  this  State,  that,  as  the  supreme  power  rests  wholly  in  the  citizens,  so 
the  exercise  of  it,  or  of  any  branch  of  it,  ought  not  to  be  delegated  by 
any  but  citizens,  and  only  to  citizens.  It  is  therefore  to  be  presumed 
that  the  people,  in  making  the  Constitution,  intended  that  the  supreme 
power  of  legislation  should  not  be  delegated  but  by  citizens.  And  if  the 
people  intended  to  impart  a  portion  of  their  political  rights  to  aliens, 
this  intention  ought  not  to  be  collected  from  general  words,  which  do 
not  necessarily  imply  it,  but  from  clear  and  manifest  expressions,  wliicli 
ai'e  not  to  be  misunderstood. 

"  But  the  words  '  inhabitants'  or  'residents'  may  comprehend  aliens, 
or  they  may  be  restrained  to  such  inhabitants  or  residents  who  are 
citizens,  according  to  the  subject  matter  to  which  they  are  applied. 
The  latter  construction  comports  with  the  general  design  of  the 
Constitution.  There  the  words  '  people '  and  '  citizens  '  are  synonymous. 
The  people  are  declared  to  make  the  Constitution  for  themselves  and 
their  posterity.  And  the  representation  in  the  general  court  is  a  repre- 
sentation of  the  citizens.'" 


OPINIONS   OF   THE    COURT.  437 

Such  were  the  reasons  upon  which  those  eminent  judges  declared 
it  to  be  their  opinion  that  the  authority  given  by  the  Constitution, 
as  originally  adopted,  to  ''inhabitants  of  each  town  "to  vote  for 
senators,  and  to  persons  "resident  in  any  particular  town,"  to  vote 
for  representatives,  was  restrained  to  such  inhabitants  and  residents 
as  were  citizens  ;  and  that  aliens,  whether  their  polls  were  or  were 
not  ratable,  were  not  qualifled  voters  for  senators  or  represent- 
atives, and  could  not  be  qualified  to  hold  cither  of  those  otlices. 

The  position  that  the  electors  and  the  elected  alike  must  be 
citizens  of  the  Commonwealth,  is  supported  by  several  articles  of 
the  Declaration  of  Rights.  "  The  people  of  this  Commonwealth 
have  the  sole  and  exclusive  right  of  governing  themselves,  as  a  free 
sovereign  and  independent  State  ;  and  do  and  forever  hereafter 
shall  exercise  and  enjoy  every  power,  jurisdiction  and  right,  which 
is  not,  or  may  not  hereafter  be,  by  them  expressly  delegated  to 
the  United  States  of  America  in  Congress  assembled."  "  The 
people  alone  have  an  incontestable,  unalienable  and  indefeasible 
right  to  institute  government ;  and  to  reform,  alter  or  totall}'' 
change  the  same,  where  their  protection,  safety,  prosperity  and 
happiness  require  it."  "  All  the  inhabitants  of  this  Commonwealth, 
having  such  qualifications  as  they  shall  establish  bj'  their  frame  of 
government,  have  an  equal  right  to  elect  oflBcers,  and  to  be  elected 
for  public  employments."  "  No  part  of  the  property  of  an}' 
individual  can  with  justice  be  taken  from  him,  or  applied  to  public 
uses,  without  his  own  consent,  or  that  of  the  representative  body 
of  the  people.  In  fine,  the  people  of  this  Commonwealth  are  not 
controllable  by  any  other  laws  than  those  to  which  their  constitu- 
tional representative  body  have  given  their  consent."  So,  that 
part  of  the  Constitution,  which  relates  to  the  house  of  represent- 
atives, begins  by  declaring, '•  there  shall  be  in  the  legislature  of 
this  Commonwealth,  a  representation  of  the  people." 

The  use  of  the  word  "inhabitants"  in  the  sense  of  "citizens" 
is  further  illustrated  by  the  following :  Part  the  First  of  the  Con- 
stitution is  entitled  "  A  Declaration  of  the  Rights  of  the  Inhabitants 
of  the  Commonwealth  of  Massachusetts."  Part  the  Second, 
entitled  "The  Frame  of  Government,"  opens  with  these  words: 
"The  people  inhabiting  the  territory  formerly  called  the  Province 
of  Massachusetts  Bay,  do  hereby  solemnly  and  mutually  agree 
with  each  other,  to  form  themselves  into  a  free,  sovereign  and 
independent  body  politic  or  state,  by  the  name  of  the  Common- 
wealth of  Massachusetts."  Power  is  conferred  upon  the  legislature 
to  erect  and  constitute  courts,  to  be  held  in  the  name  of  the  Com- 
monwealth, for  the  trial  and  determination  of  all  causes  between 


438  MASSACHUSETTS    ELECTION   CASES  —  1853-1885. 

or  concerning  "  persons  inhabiting,  or  residing,  or  brought  within 
the  same,"  and  to  impose  and  levy  rates  and  taxes  upon  "  all  the 
inhabitants  of,  and  persons  resident,  and  estates  lying  within  the 
said  Commonwealth  ;  "  thus  clearly  distinguishing  inliabitants  or 
citizens  from  other  persons  having  a  domicile  within  the  Common- 
wealth or  teraporaril}'  brought  here. 

The  Constitution  further  provides  that,  "to  remove  all  doubts 
concerning  the  meaning  of  the  word  '  inhabitant,'  in  this  Consiitu- 
tion,  every  person  shall  be  considered  as  au  inhabitant,  for  the 
purpose  of  electing  and  being  elected  into  any  office  or  place  within 
this  State,  in  that  town,  district  or  plantation  where  he  dwelleth, 
or  hath  his  home."  In  the  light  of  the  other  clauses  of  the  Con- 
stitution,  already  quoted,  and  of  the  opinion  of  the  justices,  before 
referred  to,  we  can  have  no  doubt  that  every  person  elected  a 
representative  or  a  senator  must  not  merely  have  a  domicile  within 
the  town  or  district,  but  must  be  a  citizen  of  the  Commonwealth. 

No  particular  discussion  was  had  in  the  former  opinion,  or  is 
necessary  to  the  decision  of  the  questions  now  before  us,  of  the 
meaning  of  the  word  "  inhabitant,"  as  used  in  those  provisions 
of  the  original  Constitution,  which  required  the  governor  and 
lieutenant-governor  and  every  senator  to  have  been  an  "  inhabitant 
of  this  Commonwealth,"  for  a  certain  number  of  years,  ^nd  every 
representative  to  have  been  "  an  inhabitant  of  the  town  he  shall  be 
chosen  to  represent,"  for  at  least  one  year,  next  preceding  his  elec- 
tion. Considering  that  the  word  "  inhabitant  "  as  we  have  already 
seen,  is  used  in  so  many  other  clauses  in  the  sense  of  "  citizen," 
and  that  it  is  nowhere  used  so  as  to  require  a  different  interpre- 
tation, it  might  be  contended  with  great  force,  and  may  for  the 
purposes  of  argument  be  assumed,  that  it  must  retain  the  same  re- 
stricted meaning  throughout  the  original  Constitution.  But  the 
amendments  since  adopted  present  this  matter  in  a  different 
aspect. 

By  the  third  article  of  amendment  of  the  Constitution,  adopted 
in  1820,  the  right  of  voting  for  governor,  lieutenant-governor, 
senators  and  representatives  was  limited  to  "  every  male  citizen  of 
twenty -one  years  of  age  and  upwards  (except  paupers  and  persons 
under  guardianship) ,  who  shall  have  resided  within  the  Common- 
wealth one  year,  and  within  the  town  or  district  in  which  he  may 
claim  a  right  to  vote,  six  calendar  months  next  preceding  any 
election,"  and  shall  have  paid  a  state  or  county  tax  assessed  upon 
him  within  two  years  in  any  town  or  district  of  the  Common- 
wealth. This  amendment,  by  substituting  for  "inhabitant"  the 
more  precise  word  "  citizen  "  in  defining  the  quaUficatiou  of  the 


OPINIONS    OF   THE    COUP.T.  439 

voter  at  the  time  of  the  election,  and  the  more  comprehensive 
word  "  residing,"  in  describing  his  condition  for  a  previous  period, 
manifests  the  intention  of  tlie  convention  in  framing  tlie  amend- 
ment, and  of  the  people  in  adopting  it,  to  have  been  tbat,  while 
citizenship  should  be  a  necessary  qualification  of  every  voter  at  the 
time  of  casting  his  vote,  domicile  only  should  be  required  to  pre- 
pare him  for  the  exercise  of  that  privilege.  The  practical  con- 
stiuction,  in  accordance  with  this  view,  has  been  to  allow 
foreigners,  having  paid  the  requisite  tax,  and  having  had  a  domi- 
cile within  the  town  and  the  Commonwealth,  respectively,  for  the 
times  specified,  and  having  been  naturalized  at  any  time  before  an 
election,  to  vote  thereat. 

By  the  thirteenth  article  of  amendment,  adopted  in  1840,  "  a 
census  of  the  inhabitants  of  each  city  and  town  "  was  ordered  to  be 
taken  every  ten  years  ;  and  provision  was  made  for  the  ai)portion- 
ment  of  representatives  according  to  "  the  number  of  inhabitants," 
also  called  ''  the  population,"  of  towns,  and  according  to  "  the  pop- 
ulation of  the  Commonwealth." 

By  the  sixteenth  article  of  amendment,  adopted  in  1855,  "  eight 
councillors  shall  be  annually  chosen  by  the  inhabitants  of  this 
Commonwealth,  qualified  to  vote  for  governor,"  the  legislature  is 
required,  at  its  first  session  after  each  decennial  census,  to  divide 
the  Commonwealth  into  districts  for  the  purpose,  "  each  contain- 
ing a  number  of  inhabitants  as  nearly  equal  as  practicable  ;  "  and 
"■  no  person  shall  be  eligible  to  the  office  of  councillor,  who  has  not 
been  an  inhabitant  of  the  Commonwealth  for  the  term  of  five  years 
immediatel}'  preceding  his  election." 

By  the  twent3'-first  article  of  amendment,  which  was  adopted  in 
1857,  and  superseded  the  amendment  of  1840,  it  is  provided  that 
"  a  census  of  the  inhabitants  of  each  city  and  town,"  making  "  a 
special  enumeration  of  the  legal  voters,"  shall  be  taken  every  ten 
years  ;  that  the  Commonwealth  shall  be  divided  into  districts  for 
the  choice  of  representatives,  according  to  the  number  of  legal 
voters  ;  and  that  "  every  representative,  for  one  year  at  least  next 
preceding  his  election,  shall  have  been  an  inhabitant  of  the  district 
for  which  be  is  chosen,  and  shall  cease  to  rei)resent  such  district 
when  he  shall  cease  to  be  an  inhabitant  of  said  Commonwealth." 

By  the  twentj'-secoud  article  of  amendment,  adopted  at  the  same 
time,  similar  provisions  are  made  in  regard  to  senators  ;  and  it  is 
required  that  each  senator  "  shall  have  been  an  inhabitant  of  this 
Commonwealth  five  years  at  least,  immediately  preceding  his  elec- 
tion, and  at  the  time  of  his  election  shall  be  an  inhabitant  of  the 
district  for  which  he  is  chosen,  and  he  shall  cease  to  represent 


440  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

such  senatorial  district  when  he  shall  cease  to  be  an  inhabitant  of 
the  Commonwealth." 

The  census  of  inhabitants,  required  by  the  amendments  of  the 
Constitution,  clearly  includes,  by  the  very  force  of  the  terms,  as 
well  as  in  the  understanding  of  the  legislature,  as  manifested  in 
ever^^  statute  upon  the  subject  for  more  than  twenty  years  past,  all 
persons  of  whatever  age,  sex  or  nationality,  having  a  legal  domi- 
cile within  the  Commonwealth. 

Upon  a  review  of  all  the  provisions  of  the  Constitution  and  of 
the  various  amendments  thereof,  and  appl3'ing  the  rules  of  con- 
struction laid  down  in  the  opinion  of  the  justices  in  1811,  and 
alread}^  quoted,  our  conclusion  is,  that  the  word  "inhabitant"  is 
used,  throughout  the  twenty-first  article  of  amendment,  in  its 
larger  and  more  popular  sense,  as  implying  domicile  onl}',  and  not 
citizenship  ;  and  that  the  clause  in  this  amendment  which  requires 
that  every  representative  shall  have  been  an  inhabitant  of  the  dis- 
trict for  a  year  before  his  election,  like  that  clause  of  the  third 
amendment,  which  requires  each  voter  to  have  resided  within  the 
Commonwealth  for  a  3'ear,  and  within  the  district  for  six  months, 
is  satisfied  by  having  had  a  domicile  for  the  prescribed  period  ;  but 
that,  as  it  cannot  be  inferred,  not  being  clearly  manifested,  that 
the  people  intended  that  their  supreme  legislative  power  should  be 
delegated  either  by  or  to  any  but  citizens,  therefore  the  represen- 
tatives of  the  people,  through  whom  the  people  exercise  the  legis- 
lative power,  must  themselves  be  citizens,  equally  with  those  by 
whom  they  are  chosen  and  whom  they  represent,  and  the  represen- 
tatives, like  the  voters,  must,  at  the  time  of  the  election,  be  citizens 
of  the  Commonwealth. 

In  our  opinion,  therefore,  the  questions  proposed  by  the  Honorable 
House  of  Representatives  must  be  answered  as  follows  : 

1.  The  meaning  of  the  word  "  inhabitant,"  as  used  in  the  twenty- 
first  article  of  the  amendments  to  the  Constitution  of  Massachu- 
setts, in  the  provisions  relating  to  the  qualifications  of  representa- 
tives, is  "dwelling,  or  having  his  home,"  and  does  not  include 
citizensliip. 

2.  A  person,  otherwise  qualified,  is  eligible  as  a  member  of  the 
house  of  representatives,  who  having  been  an  alien,  has  been  nat- 
uralized within  one  year  next  preceding  his  election. 

3.  An  alien  must  be  naturalized  before  he  can  become  eligible  as 
a  member  of  the  house  of  representatives. 

The  fulness  with  which  we  have  referred  to  and  quoted  the  pro- 
visions of  the  Constitution,  and  of  the  Declaration  of  Rights,  which 
forms  part  thereof,  must  find  its  excuse  in  the  fact  that  the  deter- 
ramation  of  the  questions  proposed  has  appeared  to  us  to  depend 


OPIXIONS   OF   THE    COURT.  441 

upon  a  careful  comparison  of  those  provisions,  and  in  the  admoni- 
tion of  the  Constitution  itself  that  a  frequent  recurrence  to  its 
fundamental  principles  is  absolutely  necessary  to  preserve  the 
advantages  of  liberty  and  to  maintain  a  free  government. 

Boston,  March  7,  1877. 


ANSWER  OF  THE  JUSTICES   TO  THE  HOUSE  OF  REPRESENTA- 
TIVES. 

122  Mass.  600  (1877). 

By  Chief  Justice  Gray,  and  Associate  Justices   Ames,  Mouton,  Endi- 

coTT,  Lord  and  Soule. 

The  object  of  c.  3,  art.  2,  of  the  Coustitution  of  Massachusetts,  bj'  which  "each 
branch  of  the  legislature,  as  well  as  the  governor  and  council,  shall  have  authority 
to  require  the  opinions  of  the  justices  of  the  supreme  judicial  court,  upon  iinjiortant 
questions  of  law  and  upon  solemn  occasions  "  is  to  enable  the  advice  of  the  judges  to 
be  obtained  upon  any  important  question  of  law  which  the  body  making  the  inquhy 
has  occasion  to  consider  in  the  exercise  of  the  legislative  or  executive  powers  in- 
trusted to  it,  but  not  upon  a  question  which  may  arise  in  the  course  of  judicial 
administration,  and  which  cannot  be  affected  by  legislative  or  executive  action. 

The  justices  of  the  supreme  judicial  court  prayed  to  be  excused  from  giving  an 
opinion  to  the  house  of  representatives  upon  the  following  questions :  "  First.  Is  a 
special  justice  of  a  municipal,  district  or  police  court  such  a  judge  as  the  eighth  arti- 
cle of  amendment  to  the  Constitution  declares  shall  not  have  a  seat  in  the  house  of 
representatives  ?  Second.  If  the  first  question  is  answered  in  the  affirmative,  does 
the  acceptance  of  the  legislative  vacate  the  judicial  office  ? " 

On  May  8,  1877,  the  following  order  was  passed  b}^  the  House 
of  Representatives,  and  on  May  10  transmitted  by  the  speaker  to 
the  justices  of  the  supreme  judicial  court,  who  on  May  14  returned 
the  subjoined  answer : 

Ordered,  That  the  opinion  of  the  justices  of  the  supreme  judicial 
court  be  requested  upon  the  following  questions  of  law,  viz.  : 

First.  Is  a  special  justice  of  a  municipal,  district  or  police 
court  such  a  judge  as  the  eighth  article  of  amendment  to  the  Con- 
stitution declares  shall  not  have  a  seat  in  the  House  of  Represent- 
atives ? 

Second.  If  the  first  question  is  answered  in  the  affirmative, 
does  the  acceptance  of  the  legislative  vacate  the  judicial  office? 

The  undersigned,  justices  of  the  supreme  judicial  court,  having 
taken  into  consideration  the  order  passed  by  the  Honorable  House 


442  MASSACHUSETTS    ELECTION   CASES  —  1853-1885. 


• 


of  Representatives  on  the  eighth,  and  transmitted  to  them  on  the 
tenth  day  of  the  present  month,  respectfully  submit  the  following 
answer : 

The  eighth  article  of  amendment  of  the  Constitution  of  the  Com- 
monwealth declares  that  "  no  judge  of  any  court  of  this  Common- 
wealth (except  the  court  of  sessions)  shall,  at  the  same  time,  hold 
the  office  of  governor,  lieutenant-governor,  or  councillor,  or  have  a 
seat  in  the  senate,  or  house  of  representatives  of  this  Common- 
wealth.'' 

The  inquiry  proposed  by  the  Honorable  House,  in  the  form  of  two 
successive  questions,  is  in  substance  but  one,  namely,  whether,  b^'' 
the  effect  of  this  provision  of  the  Constitution,  a  special  justice  of 
a  municipal,  district  or  police  court  vacates  his  judicial  office  by 
accepting  a  seat  in  the  house  of  representatives. 

The  Constitution  authorizes  each  branch  of  the  legislature,  as 
well  as  the  goverflor  and  council,  to  require  the  opinions  of  the  jus- 
tices of  the  supreme  judicial  court  "  upon  important  questions  of 
law  and  upon  solemn  occasions." 

The  object  of  this  clause  appears  to  us  to  be  to  enable  the  sen- 
ate, the  house  of  repressutatives,  or  the  governor  and  council,  to 
obtain  the  advice  of  the  justices  upon  any  important  question  of 
law  which  the  bod}^  making  the  inquiry  has  occasion  to  consider  in 
the  exercise  of  the  legislative  or  executive  powers  intrusted  to  them 
respectively. 

In  view  of  the  separation,  established  b}'  the  Constitution, 
between  the  legislative,  the  executive  and  the  judicial  depart- 
ments of  the  government,  we  can  hardly  suppose  it  to  have  been 
the  intention  that  either  the  legislative  or  the  executive  should  de- 
mand of  the  judiciary  its  opinion,  in  advance,  upon  a  question  which 
may  arise  in  the  course  of  judicial  administration,  and  which  can- 
not be  affected  b}'  legislative  or  executive  action. 

Without  undertaking  to  define  the  limits  of  the  authority  to 
require  opinions  from  the  judges,  or  to  enumerate  all  the  cases  in 
which  this  authority  has  been  exercised  and  recognized,  we  would 
refer  in  a  general  way  to  some  of  the  more  familiar  ones,  as  illus- 
trating the  scope  of  the  constitutional  provision. 

Opinions  have  been  given,  when  required  by  the  governor  and 
council,  upon  questions  of  law  affecting  the  constitution  of  the 
council ;  or  involved  in  the  exercise  of  the  power  of  the  governor 
to  veto  bills  or  resolves  ;  of  the  power  vested  in  him  as  commander- 
in-chief  of  the  militia ;  of  his  power,  with  the  advice  of  the  coun- 
cil, to  appoint  or  remove  public  officers,  to  pardon  offences,  or  to 
issue  warrants  for  the  execution  of  capital  sentences  ;  or  in  the 
discharge  of   duties  imposed   upon  the  governor  and  council  by 


OPINIONS   OF   THE   COURT.  443 

statute,  such  as  issuing  warrants  for  the  payment  of  claims  against 
the  Commonwealth,  or  canvassing  returns  of  votes  for  public  olll- 
cers. 

Opinions  have  been  given  to  the  senate,  or  to  the  liouse  of  rep- 
resentatives, upon  the  construction  and  effect  of  the  Conytitulion, 
and  of  existing  statutes,  with  a  view  to  further  legislation  ;  upon 
questions  whether  a  bill  has  been  so  laid  before  the  governor  as 
to  become  a  law  by  lapse  of  time  without  his  approval ;  upon  ques- 
tions relating  to  the  votes  for  governor  and  lieutenant-governor, 
which  are  directed  by  the  Constitution  to  be  counted  by  the  senate 
and  house  of  representatives  ;  or  to  the  election  of  councillors, 
while  such  election  was  required  by  the  Constitution  to  be  made 
by  the  two  houses  ;  or  to  the  election,  returns  or  qualifications  of 
senators  or  representatives,  of  which  the  senate  and  the  house 
respectively  are  the  final  judges. 

In  two  instances,  in  1844  and  in  1852,  in  which  questions  as  to 
the  legal  effect  of  a  contract,  created  by  statute,  between  the 
Commonwealth  and  a  private  corporation,  were  proposed  by  the 
house  of  representatives  and  the  senate  respectively,  apparently 
with  a  view  to  further  legislation.  Chief  Justice  Shaw  and  his 
associates,  gave  opinions  with  some  hesitation,  saying : 

"  As  the  questions,  on  the  face  of  them,  seem  to  involve  a  con- 
troverted question  of  right  between  the  Commonwealth  and  a  pri- 
vate corporation,  a  question  apparently  and  peculiarly  fit  to  be 
decided  in  a  regular  course  of  judicial  proceeding,  we  had  doubts, 
at  the  first  view  of  the  subject,  whether  it  was  a  case  coming 
within  the  intent  of  the  Constitution,  pursuant  to  which  questions 
of  law  are  to  be  proposed  ;  and  whether  it  might  not  be  expedient 
first  to  submit  to  the  consideration  of  the  Honorable  House, 
whether  it  would  be  expedient  to  request  an  ex  parte  opinion  in  such 
a  case.  Our  doubt  was  this  ;  As  we  have  no  means,  in  such  case, 
of  summoning  the  parties  adversely  interested  before  us,  or  of  in- 
quiring, in  a  judicial  course  of  proceeding,  into  the  facts  upon 
which  the  controverted  right  depends,  nor  of  hearing  counsel  to 
set  forth  and  vindicate  their  respective  views  of  the  law,  such  an 
opinion,  without  notice  to  the  parties,  would  be  contrary  to  the 
plain  dictates  of  justice,  if  such  an  opinion  could  be  considered  as 
having  the  force  of  a  judgment,  binding  on  the  rights  of  parties."  * 

The  question  now  referred  to  us,  does  not  regard  tlie  construc- 
tion or  effect  of  any  statute  or  of  any  contract  with  the  Common- 
wealth, or  an}'  matter  which  can  be  affected  by  legislation.  It 
depends  upon  a  provision  of  the  Constitution,  which,  so  far  as 


h 


*  Opinions  of  Justices,  5  Met.  59G ;  9  Cash.  604. 


444  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

it  applies,  operates  by  its  own  force.  The  question  does  not  pur- 
port to  relate  to  the  election  or  qualifications  of  a  member  of  the 
house  of  representatives.  But  the  question  is,  whether  a  certain 
judicial  officer,  b}'  accepting  a  seat  in  the  House,  vacates  his  judi- 
cial office. 

This  appears  to  us  to  be  not  a  legislative,  but  a  judicial  ques- 
tion, which  cannot  be  definitivelj'  or  justly  decided  without  trial  and 
argument. 

At  the  recent  session  of  the  full  court  in  the  county  of  Suffolk, 
it  was  adjudged  that  a  person,  once  duly  commissioned  and  quali- 
fied as  a  special  justice  of  a  police  court,  who  continued  publicly 
to  exercise  the  office  after  being  elected  and  admitted  to  a  seat  in 
the  house  of  representatives,  was,  if  not  a  justice  dejare,  a  justice 
de  facto;  and  that  the  validit}-  of  his  acts  as  such  could  not  be  con- 
tested in  a  summar}'  manner  upon  a  writ  of  habeas  corpus,  by  a 
person  whom  he  had  sentenced  to  imprisonment ;  but  onl}^  upon  a 
suit  against  him,  either  by  information  on  behalf  of  the  Common- 
wealth, or  b}'  action  by  the  person  injured.  *  It  is  within  the  offi- 
cial authorit}'  of  the  attorney-general  to  file  such  an  information, 
and  it  is  the  constitutional  right  of  the  party  to  bring  such  an 
action.  The  court  may  therefore  be  called  upon  at  any  time  to 
determine  the  question  in  a  judicial  proceeding,  in  which  any 
opinion  now  expressed  would  not  bind  the  court  or  the  parties. 

For  the  reasons  thus  briefly  and  imperfectly  stated,  the  justices 
of  the  supreme  judicial  court  (except  Mr.  Justice  Colt,  whom  there 
has  been  no  opportunity  to  consult),  with  great  deference  and 
respect  to  the  Honorable  House  of  Representatives,  pray  to  be 
excused  from  further  consideration  of  the  subject,  until  it  shall 
have  been  presented  and  argued  by  counsel  in  the  ordinary  course 
of  the  administration  of  justice. 

Boston,  May  U,  1877. 

[This  answer,  upon  being  received  by  the  house  of  representa- 
tives, was  placed  on  file  and  printed  with  the  documents  of  the 
House,  and  no  further  action  was  taken  in  the  matter.] 

*  Sheeban's  case,  122  Mass.  445. 


OPINIONS    OF   THE    COURT.  445 


Commonwealth  v.  Nathan  M.  Hawkes. 

123  Mass.  525. 

Essex,  Nov.  7,  1877  — Jan.  1,  1878.     Morton  and  Soui.e,  J.  J.,  absent. 

A  special  justice  of  a  police  court  is  a  "  judge  of  any  court  of  this  Corainonwealth 
(except  the  court  of  sessions)"  withiin  the  eighth  article  of  the  amendment  of  the 
Constitution,  and  therefore  cannot  at  the  same  time  have  a  seat  in  the  House  of 
Representatives. 

Such  a  judge,  as  the  eighth  article  of  amendment  of  the  Constitution  of  the  Common- 
wealth declares  shall  not  have  a  seat  in  the  House  of  Representatives,  legally  vacates 
his  judicial  offlce  by  accepting  a  seat  in  the  House,  and,  if  he  continues  to  exercise 
the  functions  of  a  judge,  may  be  ousted  by  an  information  in  the  nature  of  a  quo 
warranto. 

Information,  filed  July  9,  1877,  by  the  attorney-general  in  behalf 
of  the  Commonwealth,  alleging  that  in  the  city  of  Lj'nn,  in  the 
county  of  Essex,  there  was  and  long  had  been  established  a  police 
court ;  that  the  said  police  court  consisted  of  one  standing  justice 
and  of  two  special  justices;  that  on  Jan.  15,  18G7,  Nathan  M. 
Hawkes  of  said  Lynn  was  duly  appointed  and  commissioned  a 
special  justice  of  said  police  court,  and  since  said  January  15  had 
acted  as  such  special  justice ;  that  he  was  duly  elected  a  member 
of  the  house  of  representatives  of  the  Commonwealth  for  the  year 
1877,  and  on  Wednesda}',  Jan.  3,  1877,  took  his  seat  as  a  member 
of  the  house  of  representatives,  in  accordance  with  his  election, 
and  had  ever  since  and  still  held  his  seat  in  the  house  of  represen- 
tatives ;  that,  b}'  reason  thereof,  he  ceased  to  be  a  special  justice 
of  said  police  court,  yet  he  had  ever  since  that  da}-  continued  to 
act  and  still  acted  as  special  justice  of  said  court ;  and  concluding 
as  follows  :  "  Wherefore  said  attorney-general  giveth  the  court  to 
understand  and  be  informed  that  said  Hawkes,  without  any  legal 
warrant  or  right  whatever,  is  in  the  use  and  exercise  of  said  office 
of  justice  of  the  police  court  in  the  city  of  Lynn,  and  has  usurped 
the  same,  in  contempt  of  said  Commonwealth,  and  against  the 
peace  and  dignity  of  the  same.  Whereupon  said  attorney-general 
for  said  Commonwealth  prayeth  the  consideration  of  the  honorable 
court  here  in  the  premises,  and  that  due  process  of  law  may  be 
awarded  against  him,  said  Nathan  M.  Hawkes,  in  this  behalf,  to 
make  him  answer  to  the  Commonwealth,  and  show  bj'  what 
authority  he  claims  to  have,  use  and  enjoy  the  office  aforesaid." 

It  was  thereupon  ordered  that  notice  be  given  to  the  defendant 


446  MASSACHUSETTS    ELECTION    CASES  —  1853-1885. 

to  appear  on  a  daj"  named,  and  show  cause  wh}'  the  prayer  of  the 
information  should  not  be  granted. 

The  defendant  appeared  and  filed  a  demurrer  to  the  information  ; 
and  the  case  was  reserved  by  Lord,  J.,  for  the  consideration  of  the 
full  court  on  the  information  and  demurrer. 

R.  E.  Harmon  for  the  defendant. 

1.  A  justice  of  a  police  court  is  not  a  judge  of  any  court 
within  the  meaning  of  the  eighth  article  of  amendment  of  the  Con- 
stitution. In  1821,  the  time  of  the  adoption  of  the  amendment, 
there  were  no  police  courts  in  the  Commonwealth.  The  act  then 
applied  only  to  the  supreme,  common  pleas  and  probate  courts. 
The  court  of  sessions,  excepted  in  the  amendment,  had  jurisdic- 
tion of  matters  formerly  within  the  jurisdiction  of  the  court  of 
common  pleas.  The  amendment  applies  only  to  superior  courts  of 
judicature,  of  which  the  probate  court  is  one.  The  jurisdiction  of 
police  courts  is  substantially  that  then  exercised  by  justices  of  the 
peace,  and  is  not  within  the  amendment. 

2.  A  special  justice  is  not  a  judge  of  the  court.  He  maj'  act 
under  certain  circumstances,  as  a  coroner  may  serve  a  writ,  but  the 
one  is  not  a  sheriff  nor  the  other  a  judge.  In  certain  contingencies 
he  can  act  in  place  of  the  justice,  but  he  is  not  a  justice  even  in  name. 

3.  The  offices  are  not  incompatible  at  common  law.  Judges  of 
the  highest  courts  have  always  sat  in  at  least  one  house  of  Parli- 
ament. They  are  not  made  so  in  terms  hy  the  eighth  article  of 
amendment  of  the  Constitution,  but  a  seat  in  either  House  of  the 
legislature  is  denied  specifically.  The  eighth  article  of  amendment 
made  very  considerable  changes  in  the  law  as  to  incompatibility 
and  plurality  of  offices,  so  that  the  law  before  that  time  affords  no 
guide  to  the  meaning  of  the  amendment.  The  article  contains  two 
provisions. 

The  first  relates  to  state  oflSces,  and  provides  that  certain  officers, 
including  United  States  officials,  over  whose  tenure  of  oflSce  it  can 
exercise  no  control,  shall  not  hold  certain  state  ofiSces,  over  which 
it  has  full  control.  Tbe  second  relates  to  state  oflficers  accepting 
certain  United  States  oflliccs,  and  provides  that  they  shall  not  con- 
tinue to  hold  the  state  oflSces,  but  the  acceptance  of  the  national 
oflfices  shall  be  deemed  a  resignatioo  of  the  state  office.  The  first 
provision  alone  concerns  this  case.  Can  the  words  "  shall  not 
hold,"  in  case  of  a  United  States  oflScial,  receive  their  literal  sense, 
and  in  case  of  a  judge  receive  a  constructive  meaning  preciselj- 
opposite  to  the  literal  one?  Shall  the  plain  penalty  of  the  law  be 
always  evaded  by  creating  a  constructive  vacancy?  The  second 
clause  of  the  amendment  forcibly  suggests  that  the  first  clause  was 
to  receive  its  literal  sense,  since  it  vacates  the  first  oflSce  only 


OPINIONS   OF    THE    COURT.  447 

where  it  has  no  control  over  the  second.  Again,  the  eligibility  of 
a  member  to  his  seat  is  more  easil^^  naturally  and  readily  determined 
than  the  right  to  the  other  offices.  The  construction  that  the  seat 
is  invalid  has  been  held  many  times  under  this  amendment  and  the 
constitutional  provisions  in  force  before  it.  Mass.  E:iection  Cases, 
(ed.  1853)  28-30,  251. 

W.  C.  LoRixG,  Assistant  Attorney-General,  (C.  R.  Train, 
Attorney-General,  with  him), /or  the  CommdmveaUh. 

GiiAY,  C.  J. :  The  decision  of  this  case  depends  upon  the  con- 
struction and  effect  of  that  provision  of  the  eighth  article  of  amend- 
ment of  the  Constitution  of  the  Commonwealth,  adopted  by  the 
people  in  1821,  which  declares  that  "  no  judge  of  any  court  of  this 
Commonwealth  (except  the  Court  of  Sessions)"  "  shall  at  the  same 
time  hold  the  office  of  governor,  lieutenant-governor,  or  councillor, 
or  have  a  seat  in  the  senate  or  house  of  representatives  of  this 
Commonwealth." 

The  court  of  sessions  never  had  any  jurisdiction  of  civil  actions  ; 
the  criminal  jurisdiction  which  it  formerly  had  was  transferred  in 
1804  to  courts  of  common  pleas  ;  and  its  functions  at  the  time  of 
the  adoption  of  the  constitutional  amendment,  were  principally 
administrativ^e,  as  the  agent  and  representative  of  the  countj^  in  all 
matters  touching  its  finances  and  general  prudential  concerns,  such 
as  the  allowance  and  settlement  of  county  accounts,  the  estimate 
and  apportionment  of  county  taxes,  the  erection  and  repair  of 
county  buildings,  the  granting  of  licenses,  the  laying  out,  altering 
and  discontinuing  of  highways,  the  establishment  and  regulation 
of  ferries,  and  general!}-  exercising  such  powers  as  have  since  been 
vested  in  county  commissioners.  Sts.  1803,  c.  154  ;  1807,  c.  57 ; 
1818,  c.  120  ;  1819,  c.  139  ;  1827,  c.  77  ;  Rev.  Sts.  cc.  14,2G  ;  Gen. 
Sts.  cc.  17,  47  ;  JIainpsMre  v.  FranJdin,  16  Mass.  76,  88  ;  Common- 
wealth V.  Holmes,  11  Mass.  336;  Fay,  petitioner,  15  Pick.  243; 
Dearbon  v.  Ames,  8  Gray,  1,  14. 

At  that  time,  the  strictly  judicial  power  was  distributed  among 
other  courts  and  magistrates.  Justices  of  the  peacChad  criminal 
jurisdiction  of  simple  assaults  and  batteries,  and  civil  jurisdiction 
of  actions  in  which  the  debt  or  damages  demanded  did  not  exceed 
twenty  dollars.  Sts.  1783,  c.  51  ;  1807,  c.  123.  The  courts  of 
common  pleas  had  jurisdiction  of  most  other  civil  actions,  with  a 
right  of  appeal,  on  fact  as  well  as  law,  to  this  court  whenever  the 
debt  or  damages  demanded  exceeded  sevent}-,  or,  afterwards,  one 
hundred  dollars.  Sts.  1811,  c.  33;  1813,  c.  173;  1817,  c.  185; 
1820,  c.  79.  The  jurisdiction  of  all  crimes,  except  simple  assaults 
and  perhaps  some  other  petty  offences,  was  in  this  court,  or  in  the 


448  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

courts  of  common  pleas,  or  in  the  municipal  court  of  Boston.  Sts, 
1782,  c.  9;  1799,  c.  81;  1803,  c.  154;  1807,  c.  57;  1812,  c. 
133;  1820,  c.  79;  Commonivealth  v.  Knotd(or),  2  Mass.  530; 
Commonwealth  v.  Johnson,  8  Mass.  87  ;  Commonwealth  v.  Holmes, 
17  Mass.  336,  340  ;  Commonwealths.  White,  8  Pick.  453;  Brien 
V.  Commonivealth,  5  Met.  508,513,  514. 

In  the  light  of  these  facts,  we  cannot  doubt  that  the  intention  of 
the  Constitution,  as  -amended,  was  to  exclude  tlie  judges  of  all 
organized  courts,  established  to  administer  the  judicial  power  of 
the  Commonweallh,  from  sharing  in  the  exercise  of  the  supreme 
legislative  or  executive  power. 

Police  courts  were  created  after  the  adoption  of  the  constitutional 
amendment  in  question,  and  were  at  first  vested  with  the  same 
criminal  and  civil  jurisdiction  as  justices  of  the  peace.  St.  1821, 
c.  109,  §§  2,  G;  Rev.  Sts.  c.  87,  §§  1,  3,  11,  32,  34;  St.  1849, 
c.  86.  The  courts  thus  established  were  organized  judicial  tribu- 
nals, having  attributes,  and  exercising  functions  independently  of 
the  maafistrates  designated  to  hold  them,  and  were  thus  distinguished 
from  justices  of  the  peace,  on  whom  personally  certain  judicial 
powers  are  conferred  by  law  ;  and  the  judges  of  such  courts  must 
by  the  Constitution  be  appointed  during  good  behavior  instead  of 
for  seven  years,  as  in  the  case  of  justices  of  the  peace.  Opinion  of 
Justices,  3  Cush.  584;  Gladhill,  2}^iitioner,  8  Met.  168,  170; 
Bannegan  v.  Marphij,  13  Met.  251.  The  inevitable  conclusion  is 
that  each  of  these  courts  Is  a  court  of  this  Commonwealth  other 
than  the  court  of  sessions,  within  the  meaning  of  the  amendment 
of  the  Constitution. 

This  conclusion  would  be  confirmed,  if  necessary,  by  the  con- 
sideration that,  by  later  statutes,  all  police  courts  have  been  vested 
with  jurisdiction,  concurrently  with  the  superior  court,  of  many 
crimes,  and  of  all  personal  actions  and  proceedings  in  civil  cases 
in  which  the  amount  demanded  or  the  value  of  the  property  claimed 
does  not  exceed  three  hundred  dollars,  and  so  exercise  at  the 
present  day  a  considerable  portion  of  the  judicial  power  which  in 
1821  was  vested  in  the  courts  of  common  pleas  or  in  the  municipal 
court  of  Boston.     Gen.  Sts.  c.  116,  §§  13,  14  ;  St.  1871,  c.  144. 

A  special  justice  of  a  police  court  holds  his  oflBce  b}'  the  like 
appointment  and  tenure  as  the  standing  justice,  and  in  case  of  his 
absence  or  disability,  or  at  his  request,  may  hold  a  session  and 
exercise  all  the  powers  of  the  court,  and  is  in  ever}'  sense  a  judge 
thereof.  Gen.  Sts.  c.  116,  §  22;  Dike  v.  Story,  7  Allen,  349; 
Commonwealth  v.  McCarty,  14  Gray,  18. 

The  defendant  therefore  could  not  lawfully  hold,  at  one  and  the 
same  time,   the  office  of  a  special  justice  of  the  police  court  of 


OPINIONS    OF   THE    COURT.  449 

Lynn,  and  a  seat  in  the  house  of  representatives  ;  and  the  remain- 
ing question  in  the  case  is,  wliich  of  these  two  public  trusts  he 
lawfully  held,  after  unlawfully  attempting  to  hold  both.  If  he  did 
not  lawfully  hold  a  seat  in  the  House,  he  could  be  unseated  only  by 
the  House  itself,  which  is  by  the  Constitution,  the  final  judge  of  the 
elections,  returns  and  qualifications  of  its  own  members.  (Const. 
Mass.  c.  1,  §  3,  art.  10.)  But  if  he  unlawfully  holds  a  judicial 
office,  this  proceeding,  by  information  in  behalf  of  the  Common- 
wealth, is  the  proper  process  to  oust  him  from  the  office  which  he 
occupies  de  facto,  but  to  which  he  has  no  legal  right.  Fowler  v. 
Bebee,  9  Mass.  231,  235  ;  Commonwealth  v.  Fowler,  10  Mass  290, 
301;  Sheehan's  case,  122  Mass.  445;  Answer  of  Justices,  122 
Mass.  600,  G04. 

B}'  the  common  law,  when  two  offices  or  public  trusts  are  incom- 
patible with  each  other,  a  person  holding  the  one,  is  not  disquali- 
fied to  be  appointed  or  elected  to  the  other,  but  his  acceptance  of 
the  second  office  is  in  law  an  implied  resignation  of  the  first, 
whenever  it  may  be  resigned  by  the  mere  act  of  the  incumbent, 
without  the  assent  or  concurrence  of  a  superior  authority.  Mil- 
ivard  V.  Thatcher,  2  T.  R.  81  ;  The  King  v.  Hughes,  5  B.  &  C. 
886;  S.  C.  8  D.  &  R.  708;  The  King\.  TizzanJ,dTi.  &C.  418; 
S.  C.  4  Man.  &  Ry.  400  ;  The  Kivg  v.  Patteson,  4  B.  &  Ad.  9  ; 
S.  C.  1  Nev.  &  Man.  612;  Worth  v.  Newton,  10  Exch.  247; 
People  V.  Carrique,  2  Hill  (N.  Y.)  93  ;  People  v.  Nostrand,  46 
N.  Y.  375,  381  ;  Stubbs  v.  Lee,  64  Maine,  195  ;  Commonivealth  v. 
Kirby,  2  Cush.  577.  There  may  be  municipal  or  county  offices 
that  a  person  cannot  decline  to  accept,  and  therefore  has  no  right 
to  resign  at  his  own  will.  But  under  the  Constitutions  of  the 
United  States  and  of  this  Commonwealth,  at  least  a  judicial  office, 
depending  upon  the  appointment  of  the  executive,  no  person  is 
obliged  to  accept,  or  to  hold  longer  than  he  pleases,  but  has  the 
absolute  right  to  resign  at  any  time.  United  States  v.  Wright,  1 
McLean,  509. 

It  follows  that  the  defendant,  by  taking  the  seat  to  which  he  had 
been  elected  in  the  house  of  representatives,  legally  vacated  his 
judicial  office,  unless  there  is  something  in  the  Constitution  itself 
which  controls  the  general  law.  Upon  examination  of  all  the  pro- 
visions of  the  Constitution  on  the  subject,  we  are  of  opinion  that 
they  affirm,  rather  than  reverse  or  qualif}',  the  rule  of  the  common  law 
as  applicable  to  the  case.  In  order  to  make  the  discussion  intelli- 
gible, it  is  necessarj^  to  recite  those  provisions. 

The  original  Constitution  of  the  Commonwealth,  adopted  in 
1780,  contains  in  c.  6,  art.  2,  the  following  provisions  as  to  incom- 
patibility of  offices : 


450  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

"No  governor,  lieutenant-governor,  or  judge  of  the  supreme  judicial 
court,  shall  hold  any  other  office  or  place  under  the  autliority  of  this 
Commonwealth,  except  such  as  by  this  Constitution  they  are  admitted 
to  hold,  saving  that  the  judges  of  the  said  court  may  hold  the  offices  of 
justices  of  the  peace  through  the  state ;  nor  shall  they  hold  any  other 
place  or  office,  or  receive  any  pension  or  salary  from  any  other  state  or 
government  or  power  whatever. 

"  No  person  shall  be  capable  of  holding  or  exercising  at  the  same 
time,  within  this  state,  more  than  one  of  the  following  offices,  viz., 
judge  of  probate,  sheriff,  register  of  probate  or  register  of  deeds ;  and 
never  more  than  any  two  offices  which  are  to  be  held  by  appointment 
of  the  o-Qvernor,  or  the  governor  and  council,  or  the  senate,  or  the  house 
of  representatives,  or  by  the  election  of  the  people  of  the  state  at  large, 
or  of  the  people  of  any  county,  military  offices  and  the  offices  of  jus- 
tices of  the  peace  excepted,  shall  be  held  by  one  pei-son. 

"  No  person  holding  the  office  of  judge  of  the  supreme  judicial  court, 
secretary,  attorney-general,  solicitor-general,  treasurer  or  receiver-gen- 
eral, judge  of  probate,  commissary-general,  president,  professor  or 
instructor  of  Harvai'd  College,  sheriff,  cleric  of  the  house  of  representa- 
tives, register  of  probate,  register  of  deeds,  clerk  of  the  supreme  judi- 
cial court,  clerli  of  the  inferior  court  of  common  i^leas,  or  officer  of  the 
customs,  including  in  this  description  naval  officers,  shall  at  the  same 
time  have  a  seat  in  the  senate  or  house  of  representatives ;  but  their 
being  chosen  or  appointed  to,  and  aceejiting  the  same,  shall  operate  as 
a  resignation  of  their  seat  in  the  senate  or  house  of  representatives,  and 
the  place  so  vacated  shall  be  filled  up. 

"  And  the  same  rule  shall  take  place  in  case  any  judge  of  the  said 
supreme  judicial  court,  or  judge  of  probate,  shall  accept  a  seat  in  coun- 
cil, or  any  councillor  shall  accept  of  either  of  those  offices  or  places." 

The  whole  of  the  eighth  article  of  the  amendments  adopted  in 
1821  is  as  follows  : 

"  No  judge  of  any  court  of  this  Commonwealth  (except  the  coui't  of 
sessions)  and  no  person  holding  any  office  under  the  authority  of  the 
United  States  (postmasters  excepted)  shall  at  the  same  time  hold  the 
office  of  governor,  lieutenant-governor  or  councillor,  or  have  a  seat  in 
the  senate  or  house  of  representatives  of  this  Commonwealth ;  and  no 
judge  of  any  court  in  this  Commonwealth  (except  the  court  of  sessions) 
nor  the  attorney-general,  solicitor-general,  county  attorney,  clerk  of  any 
court,  sheriff,  treasurer  and  receiver-general,  register  of  probate,  nor  reg- 
ister of  deeds,  shall  continue  to  hold  his  said  office  after  being  elected  a 
member  of  the  Congress  of  the  United  States,  and  accepting  that  trust; 
but  the  acceptance  of  such  trust,  by  any  of  the  officers  aforesaid,  shall 
be  deemed  and  taken  to  be  a  resignation  of  his  said  office ;  and  judges 
of  the  courts  of  common  pleas  shall  hold  no  other  office  under  the  gov- 
ernment of  this  Commonwealth,  the  office  of  justice  of  the  peace  and 
militia  offices  excepted." 


OPINIONS   OF   THE    COURT.  451 

It  is  manifest  that  none  of  these  provisions  make  the  holder  of 
one  office  or  trust,  of  the  class  first  mentioned  in  each  clause, 
ineligible,  in  the  strict  sense,  that  is,  incapable  of  being  elected  or 
appointed  to  an  office  or  trust  of  the  other  class ;  for  the  Consti- 
tution never  sa^'s  that  such  a  person  shall  be  ineligible,  or  shall  be 
incapable  of  being,  or  disqualified  to  be,  elected  or  appointed,  but 
that  he  shall  not  "hold"  or  "continue  to  hold  "  or  "  be  capable 
of  holding  or  exercising  "  a  certain  office  or  trust,  or  "  have  a 
seat,"  in  the  senate  or  house. 

It  was  accordingly  decided  b}"  the  house  of  representatives  in 
1800  that  a  judge  of  probate,  who  resigned  his  judicial  office  after 
being  elected  a  representative  and  before  the  meeting  of  the  Legis- 
lature, was  qualified  to  take  his  seat  in  the  house.  Case  of  SuUi- 
van^  Mass.  Election  Cases  (ed.  1853)  39. 

In  no  case  does  the  Constitution  provide  that  thd  acceptance  of 
the  second  office  or  trust  shall  be  void,  and  the  incumbent  shall 
continue  to  hold  the  first.  But  whenever  anvthins:  is  said  as  to 
which  office  or  trust  a  person  shall  hold,  who,  already  holding  one, 
accepts  another  incompatible  with  it,  it  is,  in  accordance  with  the 
rule  of  the  common  law,  that  such  acceptance  ''  shall  operate  as," 
or  "  shall  be  deemed  and  taken  to  be  a  resignation  "  of  the  first. 
Nor  can  any  implication  arise,  from  the  expression  of  this  rule  in 
some  cases,  that  a  different  rule  is  intended  where  none  is  ex- 
pressed ;  because  in  every  case,  in  which  the  rule  of  the  common 
law  is  recognized,  there  was  special  reason  for  the  introduction  of 
the  clause  that  contains  such  recognition. 

In  that  part  of  the-  original  Constitution,  for  instance,  which, 
after  declaring  that  no  person  holding  the  office  of  judge  of  this 
court,  or  either  of  certain  other  offices  therein  enumerated,  shall 
at  the  same  time  have  a  seat  in  the  senate  or  house  of  representa- 
tives, adds,  "  but  their  being  chosen  or  appointed  to,  and  accept- 
ing the  same,  shall  operate  as  a  resignation  of  their  seat  in  the 
senate  or  house  of  representatives,  and  the  place  so  vacated  shall 
be  filled  up,"  the  purpose  of  the  addition  would  appear  to  have 
been  to  make  it  clear  that  the  senate  or  house  might  issue  a  pre- 
cept for  a  new  election  to  fill  the  vacancy  ;  and  such  imperfect  notes 
as  have  come  down  to  us  of  the  debates  in  the  convention  which 
framed  the  Constitution  support  this  view.  (Journal  of  Conven- 
tion of  1779-80,  pp.  81,  139,  144,  162,  166.)  That  without  such 
a  provision,  the  right  to  issue  a  new  precept  might  be  considered 
doubtful  is  evident  from  the  Opinion  of  the  Justices,  3  Pick.  517. 

The  further  provision,  "  And  the  same  rule  shall  take  place  in 
case  any  judge  of  the  said  supreme  judicial  court  or  judge  of  pro- 
bate shall  accept  a  seat  in  council,  or  any  councillor  shall  accept 


452  Mx\SSACHUSETTS   ELECTION   CASES  —  1853-1885. 

of  either  of  those  offices  or  places,"  was  apparently  intended  to 
remove  any  doubt  as  to  whether  a  seat  in  the  council  should  be 
considered  as  an  "  office  or  place,"  within  the  meaning  of  the  first 
paragraph  of  the  same  article,  and  to  declare  in  the  clearest  terms 
the  incompatibility  of  the  office  of  judge  of  probate  as  well  as  of 
the  office  of  judge  of  this  court,  with  a  seat  in  the  council,  and  thus 
cure  the  evil  that  had  prevailed,  under  the  province  charter,  when 
Thomas  Hutchinson  was  at  one  time  lieutenant  governor  and  a 
member  of  the  council  (then  also  a  branch  of  the  legislature)  as 
well  as  chief  justice  of  the  superior  court  of  judicature  and  judge 
of  probate  for  the  county  of  Suffolk.  (Quincy,  242-244,  226  note  ; 
2  John  Adams'  Works,  124,  151.) 

The  eighth  article  of  amendment  is  in  the  nature  of  an  addition 
to  the  article  of  the  original  Constitution  on  the  subject  of  incom- 
patibility of  offices.  Its  objects,  as  apparent  from  its  terms,  and 
as  stated  by  Mr.  Webster  in  bringing  it  before  the  convention 
which  submitted  it  to  the  people,  were,  1st,  to  extend  the  disquali- 
fication of  judges  to  sit  in  the  legislature  or  the  council  (which 
had  been  previously  limited  to  judges  of  this  court  and  judges  of 
probate)  to  judges  of  other  courts ;  2d,  to  prevent  the  holding  by 
the  same  person  at  the  same  time  of  important  offices  or  trusts 
under  the  state  government  and  under  the  Constitution  of  the 
United  States,  which  had  been  established  since  the  adoption  of 
the  Constitution  of  the  Commonwealth  ;  3d  (which  is  not  material 
to  the  present  inquir}'),  to  restrict  the  number  of  offices  that  might 
be  held  by  the  judges  of  the  courts  of  common  pleas.  Debates  in 
convention  of  1820  (ed.  1853),  124,  187. 

The  express  declaration,  in  this  article  of  amendment,  that  the 
acceptance  of  the  trust  of  a  member  of  Congress,  by  any  of  the 
state  officers  mentioned,  "  shall  be  deemed  and  taken  to  be  a  resia;- 
nation  of  his  said  office,"  may  well  have  been  inserted  to  make  it 
manifest  that  the  Commonwealth  did  not  assume  to  deal  with  the 
right  to  a  seat  in  Congress,  the  qualifications  for  which  are  defined 
by  the  Constitution  of  the  United  States.  And  the  omission  of  a 
corresponding  declaration  in  the  earlier  part  of  the  same  article 
would  seem  to  have  been  dictated  bj^  the  same  spirit,  in  order  to 
avoid  saying,  what  the  Commonwealth  would  have  no  power  to 
enforce,  that  an  office  under  the  authority  of  the  United  States 
should  be  vacated  by  holding  an  office  or  seat  in  the  state  govern- 
ment. 

The  cases  cited  in  the  defendant's  behalf,  in  which  persons  hold- 
ing offices  under  the  United  States,  have  not  been  allowed  by  the 
Massachusetts  house  of  representatives  to  hold  seats  therein,  do 
not,  giving  them  the  fullest  weight,  tend  to  support  his  position. 


OPINIONS   OF    THE    COURT.  453 

All  of  them  but  one  were  decided  before  the  Constitution  of  the 
Commonwealth  contained  any  provision  as  to  the  incompatibilit}' 
of  national  with  state  offices  ;  and  in  none  of  them  did  it  appear 
that  the  office  under  the  United  States  was  accepted  first,  except  in 
the  case  of  David  Sewall,  then  judge  of  the  district  court  of  the 
United  States  for  the  District  of  Maine,  as  to  whom  the  question 
was  raised  and  decided  in  1790,  upon  his  appearing  to  take  his 
seat  as  a  member  of  the  house  ;  so  that  it  is  evident  that  the  point 
was  whether,  without  resigning  his  judicial  office,  he  could  hold  a 
seat  in  the  house  of  representatives,  in  the  absence  of  anj'  constitu- 
tional provision  upon  the  subject.  Mass.  Election  Cases,  28-30, 
251. 

On  the  other  hand,  the  words  in  question  have  practically  re- 
ceived, as  applied  to  the  highest  offices  of  the  Commonwealth,  the 
construction  that  we  adopt.  Mr.  Justice  Sumner,  under  the  Con- 
stitution of  1780,  and  Justices  Lincoln  and  Morton,  since  the 
adoptii)n  of  the  amendment  of  1821,  were  elected  to  and  accepted 
the  office  of  governor,  while  holding  the  office  of  a  justice  of  this 
court,  and  were  recognized  b}'  the  whole  people  of  the  Common- 
weallh  as  having  lawfuU}'  assumed  its  chief  executive  office.  Mr. 
Justice  Morton  certainly  resigned  his  judicial  office  in  no  other  wa^' 
than  by  accepting  the  office  of  governor,  1  Met.  1.  And  it  may 
fairly  be  presumed  that  his  action  was  in  accordance  with  that  of 

his  predecessors  in  similar  cases. 

Demurrer  overruled. 


OPINION   OF   THE   JUSTICES   TO   THE  HOUSE  OF  REPRESENT- 
ATIVES. 

124  Mass.  596  (1878). 

By  Chief  Justice  Gray  and  Associate  Justices  Colt,  Ames,  Morton, 

Endicott,  Lord  and  Soule. 

By  the  third  article  of  amendment  of  the  Constitution  of  the  Commonwealth, 
tiie  disqualification  of  pauperism  is  not  required  to  have  ceased  to  exist  for  any 
definite  period  of  time,  in  order  to  entitle  a  man  actually  free  from  such  disqualifi- 
cation, ard  otherwise  qualified,  to  exercise  the  right  of  suffrage. 

The  following  order  was  passed  by  the  house  of  representa- 
tives on  April  1, 1878,  and  on  April  4,  transmitted  by  the  speaker 


454  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

to  the  justices  of  the  supreme  judicial  court,  who  on  April  8, 
returned  the  answer  which  is  subjoined. 

Ordered,  That  the  opinion  of  the  justices  of  the  supreme  judi- 
cial court  be  required  upon  the  following  questions  of  law  ;  viz. : 

First.  What  is  the  meaning  of  article  third  of  the  amendments 
to  the  State  Constitution  in  relation  to  the  exercise  of  the  right 
of  suffrage  by  persons  who  have  been  paupers  at  any  time? 

Second.  Does  the  State  Constitution  require  any  period  of 
probation  or  residence,  after  a  person  has  ceased  to  be  a  pauper, 
before  he  can  exercise  the  right  of  suffrage? 

The  justices  of  the  supreme  judicial  court,  having  considered 
the  questions  proposed  in  the  order  of  the  Honorable  House  of 
Representatives  of  the  first  day  of  the  present  month,  respectfully 
submit  the  following  opinion  : 

The  third  article  of  amendment  of  the  Constitution  of  the 
Commonwealth  provides  that  "ever}'  male  citizen  of  twenty-one 
years  of  age  and  upwards  (excepting  paupers  and  persons  under 
guardianship)  who  shall  have  resided  within  the  Commonwealth 
one  year,  and  within  the  town  or  district,  in  which  he  may  claim 
a  right  to  vote,  six  calendar  months  next  preceding  any  election 
of  governor,  lieutenant-governor,  senators  or  representatives," 
and  who  either  shall  have  paid  a  state  or  county  tax  assessed 
upon  him  within  two  years  next  preceding,  or  shall  be  by  law 
exempted  from  taxation,  shall  have  a  riglit  to  vote  at  such 
election. 

The  meaning  of  the  word  "paupers"  in  this  article  was 
defined,  in  an  opinion  given  to  the  Honorable  Senate  in  1832,  to 
be  persons  receiving  aid  and  assistance  from  the  public,  for  them- 
selves or  their  families,  under  the  provisions  made  by  law  for  the 
support  and  maintenance  of  the  poor.  (11  Pick.  538,  640.)  And 
it  has  been  decided  that  a  man  who  has  been  supported  by  his 
town  as  a  pauper,  but  is  able  to  earn  more  than  enough  to  sup- 
port himself  and  has  found  an  employer,  and  is  therefore  not 
actually  chargeable  to  the  town  and  stands  in  no  need  of  imme- 
diate relief,  is  no  longer  a  pauper.  Wilson  v.  Brooks,  14  Pick. 
341. 

We  do  not  understand  the  order  now  before  us  as  callino-  for 
any  particular  consideration  of  what  constitutes  a  pauper,  or  how 
the  fact  of  ceasing  to  be  a  pauper  may  be  ascertained  ;  but  thtit 
the  whole  scope  of  the  inquiry  is,  whether  a  person  who  is 
admitted  to  have  been,  and  to  have  ceased  to  be,  a  pauper,  must 
have  ceased  to  be  such  for  any  definite  pei-iod  of  time  before  he 


OPINIONS    OF    THE    COURT.  455 

can  exercise  the  right  of  suffrage.     We  are  of  opiuion  that  he 
need  not. 

The  only  qualifications,  which  are  required  by  the  amendment  of 
the  Constitution  to  have  existed  for  a  certain  time,  are  those  of 
residence  within  the  Commonwealth  and  within  the  town  or  district 
—  in  the  one  for  a  year,  and  in  the  other  for  six  months.  The  pro- 
visions of  the  original  Constitution,  which  required  a  property  qual- 
ification, and  for  which  the  provision  as  to  paupers  and  persons 
under  guardianship  has  been  substituted,  were  held  to  be  satisfied 
by  a  voter's  receiving  in  good  faith  the  requisite  amount  of  property 
on  the  morning  of  the  day  of  election.  .  Bridge  v.  Lincoln,  14  Mass. 
367.  In  the  article  of  amendment,  the  restriction  as  to  paupers 
and  persons  under  guardianship  is  not  coupled  with  the  provision 
as  to  residence,  but  is  inserted  by  way  of  exception  to  the  leading 
clause  which  secures  the  right  of  suflTrage  to  adult  male  citizens. 
It  is  no  more  required  that  the  voter  shall  have  ceased  to  be  a  pau- 
per, or  under  guardianship,  a  year  or  six  months  before  the  elec- 
tion, than  that  he  shall  have  been  a  citizen,  or  of  age,  during  a  like 
period.  It  has  never  been  doubted  that  minors  having  the  other 
requisite  qualifications,  become  qualified  to  vote  immediately  upon 
arriving  at  full  age,  Humphrey  v.  Kingman,  5  Met.  162,  165. 
And  b}'  uniform  usage,  recognized  and  approved  in  an  opinion 
given  to  the  Honorable  House  lastj^ear,  persons  otherwise  qualified, 
who  have  been  naturalized  at  any  time  before  the  election,  have 
been  deemed  entitled  to  vote.     122  Mass.  594,  598. 

The  necessary  conclusion  appears  to  us  to  be,  that  by  the  third 
article  of  amendment  of  the  Constitution  of  the  Commonwealth,  the 
disqualification  of  pauperism  or  guardianship,  like  that  of  alienage 
or  nonage,  is  not  required  to  have  ceased  to  exist  for  an}'  definite 
period  of  time,  in  order  to  entitle  a  man  actually  free  from  every 
such  disqualification,  and  duly  qualified  in  point  of  residence  and  of 
payment  of  taxes,  to  exercise  the  right  of  sufi'rage. 

Boston,  April  8,  1878. 


456  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 


Leonard   Clark  v.  Board   of   Examiners  of   Hasipden 

County. 

126  Mass.  282  (1879). 

Hampden,  January  14 ;  February  14  -  27,  1879. 

The  duties  of  a  board  of  examiners  of  election  returns,  under  the  Gen.  Sts.  c.  7,  § 
25,*  are  purely  ministerial,  and  the  board  cannot  receive  or  consider  evidence  of  ex- 
trinsic circumstances,  but  is  confined  to  the  records  of  votes  returned  and  laid  before 
it ;  and  mandamus  will  not  lie  to  compel  the  board  to  count  certain  votes,  containing 
the  initial  letter  only  of  the  Christian  name  of  a  candidate,  with  other  votes  containing 
his  name  in  full. 

Petition  for  a  writ  of  mandamus  to  compel  the  respondents  to 
count  for  the  petitioner  certain  ballots  for  county  commissioner 
purporting  to  be  for  "L.  Clark  of  Springfield,"  and  to  notif}'  him 
of  his  election.  At  the  hearing  before  Coll,  J.,  the  case  appeared 
to  be  as  follows  : 

On  Nov.  5,  1878,  an  election  was  had  for  the  office  of  county 
commissioner  for  the  term  of  three  3'ears  from  Jan.  1,  1879  ;  and 
coj^ies  of  the  records  of  the  votes  received  in  the  several  cities  and 
towns  of  the  county  were  returned  to  the  clerk  of  the  courts,  and 
b}'  him  presented  to  the  respondents,  which  copies  showed  votes 
cast  for  county  commissioner  as  follows  :  6,287  votes  for  "  Leonard 
Clark  of  Springfield,"  132  votes  for  "  L.  Clark  of  Springfield,"  198 
votes  for  "  Leonard  Clark,"  6,421  votes  for  '•  Lawson  Sibley'  of 
Springfield,"  114  votes  for  "Lawson  Sibley,"  and  39  for  other 
persons.  The  respondents  declined  to  count  the  votes  for  ''  L. 
Clark  of  Springfield,"  as  for  the  petitioner,  and  found  that  Lawson 
Sible}'  had  received  a  plurality  of  votes  and  was  elected,  and  noti- 
fied him  accordingly  ;  but  he  declined  to  accept  the  office. 

The  petitioner  alleged  that  the  name  L.  Clark  was  his  name  in 
an  abbreviated  form,  and  he  was  as  well  known  by  that  name,  as 
by  his  full  name  of  Leonard  Clark  ;  and  that  the  votes  cast  for  "  L. 
Clark  of  Springfield"  were  intended  and  should  have  been  counted 
for  him,  and  it  was  the  duty  of  the  respondents  to  find  him  chosen 
and  to  notify  him  of  his  election.  The  respondents,  in  their  answer, 
denied  that  the  petitioner  had  a  plurality  of  votes,  and  that  L,  Clark 
was  his  name  ;  and  averred  that  they  were  ignorant,  and  had  no 
means  or  authority  for  ascertaining,  whether  he  was  as  well  known 
by  the  name  of  L.  Clark  as  by  that  of  Leonard  Clark,  or  whether 

*  Now  Pub.  Stats.,  c.  7,  §  48. 


OPINIONS   OF    THE    COURT.  457 

the  votes  returned  as  given  for  L.  Clark  were  intended  for  him. 
The  petitioner  offered  to  prove  by  parol  evidence  that  the  ballots 
for  "  L.  Clark  of  Spring-field  "  were  intended  for  hira,  by  those  who 
cast  them.  The  respondents  admitted  that  such  was  the  fact,  if 
competent  to  be  so  proved,  but  objected  to  the  evidence  as  in- 
competent and  immaterial. 

The  judge  reserved  the  case  for  the  consideration  of  the  full 
court;  such  judgment  or  order  to  be  entered  as  law  and  justice 
might  require. 

The  case  was  argued  at  the  bar  in  January,  and  afterwards  sul)- 
mitted  on  briefs  to  the  whole  court. 

M.  P.  KsowLTO^  for  the  petitioner. 

G.  Wells /o7-  the  respondents. 

Gray,  C.  J. :  The  statutes  require  that,  in  all  elections,  "  the 
names  of  the  persons  voted  for,  the  number  of  votes  received  for 
each  person,  and  th:;  title  of  the  office  for  which  he  is  proposed, 
shall  be  entered  in  words  at  length"  in  the  town  and  cit3'  records ; 
that  copies  of  the  records  of  the  votes  for  county  commissioner  in 
the  several  cities  and  towns  of  each  county  shall  be  returned  by 
the  city  and  town  clerks  to  the  clerk  of  the  courts,  and  that  on  the 
first  Wednesday-  of  the  month  succeeding  the  election  the  board  of 
examiners  shall  meet,  the  clerk  of  the  courts  shall  present  the  re- 
turned copies  of  votes,  "  and  the  board  shall  open  and  examine 
them,  and  notify'  the  person  chosen  of  his  election,"  and  shall  with- 
in three  days  after  such  examination  file  such  copies  in  the  office  of 
the  clerk.  Gen.  Sts.  c.  7,  §§  15,  17,  25,  26  * 

The  petition  now  before  us  does  not,  like  an  information  in  the 
nature  of  a  quo  warranto,  present  the  whole  question  of  the  right 
to  the  office  of  count}'  commissioner,  nor  involve  the  consideration 
of  what  evidence  might  be  received  upon  the  trial  of  that  right ;  but 
simply  presents  the  question  whether  the  examiners  have  duly 
performed  the  duties  imposed  upon  them  by  the  statutes,  of  ex- 
amining and  counting  the  votes,  and  notifying  the  person  thereby 
appearing  to  be  chosen.  The  nature  and  limits  of  these  duties 
have   been   clearly   defined   in   former  judgments   of  this   court. 

"  Nothing  can  be  clearer  than  that  the  counting  the  votes  and 
ascertaining  the  majorities  and  giving  certificates  of  the  result  are 
mere  ministerial  acts.  Thc}^  have  no  discretion  in  determining 
which  of  the  candidates  shall  be  elected.  It  must  be  the  result  of 
pure,  inflexible  mathematical  calculation."  Strong,  petitioner,  20 
Pick.,  484,  497,  498.     "They  are  not  made  a  judicial   tribunal, 

*  Now  Pub.  Sts.,  c.  7,  §§  26,  40,  48,  49, 


458  MASSACHUSETTS    ELECTION   CASES — 1853-1885. 

nor  authorized  to  decide  upon  the  validity  or  the  fact  of  the  elec- 
tion, in  any  other  mode  than  by  an  examination  of  '  the  returns ' 
made  to  them,  according  to  law.  They  are  not  required  or  author- 
ized to  hear  witnesses,  or  weigh  evidence.  They  have  no  power  to 
send  for  persons  or  papers.  If  one  result  appears  upon  the  returns, 
and  another  is  the  real  truth  of  the  case,  they  can  only  act  upon  the 
former.  If  they  have  done  their  duty,  the  remedy  of  the  person 
actually  elected  to  the  office  is  not  to  be  sought  in  a  mandamus. 
This  court  has  no  power  to  direct  public  officers  to  do  any  more 
than  their  duty,  or  anything  diflferent  from  their  duty."  Luce  v. 
Mayhew,  13  Gray,  83,  85. 

In  Stronijs  case,  above  cited,  it  was  held  that,  if  some  of  the 
returns  added  the  residence  of  the  candidate  and  others  omitted 
it,  the  latter  contained  all  that  the  statute  demanded,  and   the 
former  were  not  vitiated  by  including  more  ;  and  therefore  that 
the  board  of  examiners,  in  refusing  to  add  to  votes  for  Elisha 
Strong  of  Northampton  votes  for  Elisha  Strong  simply,  put  too 
strict   a   construction   upon   the  statute    and   upon   the   returns. 
The  court  said :     "  The  latter  are  ouly  evidence  of  the  will  of  the 
electors  expressed  by  their  ballots.     If  this  evidence  is  such  as  to 
produce  reasonable  conviction  of  what  that  will  is,  it  should  be 
allowed  to  have  its  legitimate  effect.     But  if  they  are  so  indefi- 
nite or  ambiguous,  in  their  descriptions  of  the  persons  voted  for, 
that  it  cannot  be  ascertained  that  any  person  has  a  majority  of  all 
the  suffrages,  then  the  only  proper  course  would  be  to  send  the  mat- 
ter back  to  the  people,  to  give  them  an  opportunity  more  clearly 
to  express  their  will."     20  Pick.  494.     Under  the  statutes  then  in 
force,  a  majority  of   the  whole  number  of  ballots  cast  was  neces- 
sary to  an  election,  and,  if  no  person  had  received  such  a  major- 
ity, a  new  election  was  required.     Rev.   Sts.   c.  4,  §  13  ;  c.  14, 
§§  18-20.     But  by  thd  statutes  now  existing  a  plurality  of  votes 
only  is  necessary,  and  the  person  "  having  the  highest  number  of 
votes  shall  be  deemed   and  declared   to  be  elected."     So  that  a 
new  election  cannot  be  ordered  unless  two  or  more  persons  have 
an  equal  number  of  votes,  and  it  is  the  duty  of  the  board  of 
examiners  to  declare  that  person  to  be  elected  for  whom  the 
greatest  number  of  votes  can  be  ascertained  from  the  returns   to 
have  been  cast,  although  less  than  a  majority  of  the  whole.     Gen. 
Sts.  c.  7,  §  14;  c.  10,  §  8. 

In  the  present  case,  the  returns  of  votes  show  that  6,287  votes 
were  cast  for  "  Leonard  Clark  of  Springfield,"  and  198  votes  for 
''  Leonard  Clark,"  G,421  votes  for  "  Lawson  Sibley  of  Springfield" 
and   114  votes  for   "  Lawson   Sibley."      These   votes,  reckoned 


OPINIONS    OF   THE    COURT.  459 

according  to  the  rale  established  in  Strong's  case,  show  6,485 
votes  for  Leonard  Clark  and  G,535  votes  for  Lawson  Sibley,  so 
that  Lawson  Sibley  appears  to  be  elected  by  a  plurality  of  50 
votes,  unless  the  board  of  examiners  erred  in  refusing  to  count 
for  Leonard  Clai-k  132  other  votes  cast  for  '•  L.  Clark  of  Spring- 
field," and  the  question  to  be  determined  is  whether  the  board  of 
examiners  erred  in  declining  so  to  count  these  votes. 

It  is  quite  usual  to  express  the  Christian  name  of  persons,  both 
in  their  own  signatures  and  by  other  persons,  by  one  letter  only, 
although  a  single  letter  rarely  constitutes  the  whole  Christian 
name.  The  use  of  an  initial  letter  only,  in  legal  documents,  pro- 
ceedings or  votes,  is  not  to  be  commended,  because  of  the 
danger  of  uncertainty  in  the  identification  of  the  person  ;  yet 
when  no  doubt  of  the  identity  is  created,  or  any  such  doubt  may 
be  removed  by  competent  evidence,  the  omission  to  set  forth  the 
Christian  name  at  length,  either  in  a  person's  own  signature  or  in 
his  description  by  another  person  (even  if  the  latter  knows  his  full 
name),  though  incomplete,  is  not  necessarily  erroneous.  Regina 
V.  Avery,  18  Q.  B.  576  ;  Commonwealth  v.  Hamilton,  15  Gray, 
480  ;   GetcheU  v.  Moran,  124  Mass.  404. 

Upon  a  case  of  a  controverted  election,  brought  before  a  legisla- 
tive body  vested  with  the  power  of  determining  the  elections, 
returns  and  qualifications  of  its  own  members,  or  presented  to  a 
judicial  tribunal  by  information  in  the  nature  of  a  quo  warranto, 
or  other  proper  process  to  try  the  title  to  an  office,  evidence  of 
extrinsic  circumstances,  such  as  that  no  other  person  of  corre- 
sponding initials  resided  in  the  same  city  or  county,  or  had  been 
nominated  by  public  convention  or  otherwise  for  the  office  in 
question,  may  be  introduced,  and  may  satisfy  the  tribunal  having 
authorit}"  to  receive  and  consider  it  that  votes  describing  the 
Christian  name  by  a  single  letter  were  intended  for  the  same 
person  as  votes  setting  forth  at  length  a  Christian  name  having 
a  correspoaiding  initial. 

But  the  board  of  examiners  cannot  receive  or  consider  such 
extrinsic  evidence,  and  is  confined  to  the  records  of  votes 
returned  and  laid  before  it  according  to  the  statute.  Upon  the 
face  of  the  returns,  the  votes  cast  for  L.  Clark  of  Springfield  may 
possibly  indicate  a  person  whose  whole  Christian  name  consists  of 
the  letter  L.,  or  more  probably  a  person  having  a  name  of  which 
this  letter  is  the  initial,  and  which  may  be  either  Leonard  or 
Lewis  or  Luther,  or  any  other  name  beginning  with  this  letter. 
This  is  the  utmost  that  can  be  known  from  the  returns,  taken  by 
themselves.      The  inference,  however  plausible,   that  the   votes 


460  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

cast  for  "  L.  Clark,"  were  intended  to  be  cast  for  "  Leonard 
Clark,"  is  left  by  the  returns  a  matter  of  conjecture  only.  It  is 
impossible,  therefore,  for  this  court,  upon  the  record  before  it,  to 
say  that  the  board  of  examiners  erred  in  refusing  to  count  the 
votes  in  question  for  Leonard  Clark. 

This  view  of  the  case  is  supported  by  the  opinions  of  most 
respectable  judges  in  Maine  and  in  New  York.  Opinion  of  Jus- 
tices, 64  Maine,  596;  People  v.  Ferguson,  8  Cowen,  102,  106, 
107 ;  People  v.  Seaman,  5  Denio,  409  ;  People  v.  Cook,  14  Barb. 
259  and  4  Selden,  67  ;  Peop'e  v.  Pease,  27  N.  Y.  45  ;  People  v. 
Smith,  45  N.  Y.  772,  779.  In  Michigan,  the  judges,  differing 
from  those  of  New  York  in  the  cases  just  cited,  have  gone  so  far 
as  to  hold  that,  even  upon  an  information  to  try  the  title  to  an 
office,  votes  describing  the  Christian  name  by  a  single  letter  could 
not  be  added  to  votes  for  a  person  of  a  corresponding  full  name. 
People  V.  Tisdale,  1  Doug.  (Mich.)  59  ;  People  v.  Biggins,  3 
Mich.  233  ;  Peojyle  v.  Cicott,  16  Mich.  283  ;  People  v.  Molitor,  23 
Mich.  342.  In  People  v.  Cicott,  doubts  were  expressed  whether 
such  an  application  of  the  rule  was  not  erroneous  in  principle  ; 
but  neither  in  that  case,  nor  in  any  other  with  which  the  learning 
and  research  of  counsel  have  supplied  us,  has  it  been  held  to  be 
competent  for  a  mere  board  of  examiners  or  canvassers  to  deter- 
mine that  such  votes  should  be  counted  for  the  same  person. 

As  Leonard  Clark  did  not  appear  on  the  face  of  the  returns  to 
have  received  a  plurality  of  votes,  the  contingency  did  not  arise 
in  which  it  would  become  the  duty  of  the  board  of  examiners, 
under  the  Gen.  Sts.  c.  7,  §  25,  to  ascertain  the  person  of  the  name 
of  Clark  designated  in  any  of  the  votes,  in  order  to  notify  him  of 
his  election. 

For  these  reasons,  it  is  the  opinion  of  a  majority  of  the  court 

that  the  writ  of  mandamus  prayed  for  must  be 

Refused. 


OPINIONS   OF    THE    COURT.  461 


COMMONAVEALTH   V.    LORENZO    SmITH. 

132  Mass.  289. 

Dukes  County,  Oct.  25,  1881— March  4,  1882.     Morton,  C  J.,  W.  Allf.n, 

and  C.  Allen,  J.  J.,  absent 

A  notice  to  the  inhabitants  of  a  town  of  the  meeting  for  the  annual  state  election, 
called  upon  them  to  meet  on  a  certain  daj'  at  a  designated  place,  "  to  vote  for  gov- 
ernment ofBcers;"  was  signed  by  a  majority  only  of  the  selectmen,  without  the 
addition  of  the  name  of  their  office  to  their  signatures ;  was  not  directed  to  or  served 
by  a  constable  or  other  person  appointed  by  the  selectmen  for  that  purpose ;  but  was 
posted  more  than  seven  days  before  the  day  of  the  election  in  a  public  place,  accord- 
ing to  the  usual  custom  of  the  town,  there  being  no  by-law  or  rote  of  the  town  pre- 
scribing how  warrants  for  meetings  should  be  served.  All  but  eight  of  the  registered 
voters  of  the  town  were  present  at  the  meeting,  and  of  these  all  voted  for  the  office  of 
county  commissioner  but  one.  Of  the  eight  who  were  not  present,  five  had  actual 
notice  of  the  time  and  place  of  the  meeting  and  that  a  county  commissioner  was  to  be 
voted  for,  two  had  l)een  absent  at  sea  more  than  two  weeks  prior  to  the  meeting,  and 
one  was  confined  to  his  bed  by  sickness.  One  of  the  candidates  for  county  commis- 
sioner had  a  plurality  of  eight  votes  in  all  the  towns  of  the  county  including  the  town 
in  question.  Ue/d,  upon  an  information  in  the  nature  of  a  qico  tcarranto,  that  the 
election  in  the  town  in  question  was  valid ;  and  that  the  defendant  was  duly  elected 
to  the  office  of  county  commissioner. 

Information  in  the  nature  of  a  qico  warranto,  filed  April  1,  1880, 
by  the  Attorney-General  in  behalf  of  the  Commonwealth,  and  at 
the  relation  of  Benjamin  Clough,  alleging  that  the  defendant  was 
usurping  the  ofBce  of  county  commissioner  of  the  county  of  Dukes 
County. 

At  the  hearing  before  Morton,  J.,  it  appeared  that  the  defend- 
ant's title,  to  his  office  depended  upon  the  validity  of  the  notice  of 
the  annual  meeting  held  in  the  town  of  Gay  Head  on  Nov.  4,  1879, 
for  the  election  of  state  and  county  officers,  he  having  received  four 
hundred  and  twenty-nine  votes,  includisig  tvvent3--four  votes  cast 
for  him  in  Gay  Head,  and  Clough,  the  relator,  having  received  four 
hundred  and  twenty-one  votes.  On  the  question  of  the  validity  of 
this  notice  the  judge  found  the  following  facts,  subject  to  objections 
as  to  their  competency' : 

More  than  seven  days  before  the  day  of  the  annual  election,  a 
notice  of  which  the  following  is  a  copy,  was  posted  by  Charles  H. 
Mingo,  chairman  of  the  selectmen,  on  the  door  of  the  meeting- 
house in  Gay  Head. 

"  Notice. 

"To  notify  the  inhabitants  qualihed  to  vote  in  town  affairs  to  meet  at 
the  school-house  on  the  fourth  day  of  November  next  at  ten  o'clock  A.  M. 


462  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

to  vote  for  government  officers.    Polls  will  be  open  from  ten  o'clock 

A.  M.  until  two  p.  M.  CHARLES  H.  MINGO. 

THOMAS   JEFFERS. 
"  Gat  Head,  Oct.  25,  1879." 

Another  notice,  like  the  above  in  every  particular  excepting  that 
it  did  not  have  the  name  of  Thomas  Jeffers  subscribed,  was  posted 
on  the  school-house  more  than  seven  days  before  election  day. 
There  was  no  other  warrant  or  notice  of  the  meeting,  and  no  person 
was  appointed  b}'^  the  selectmen  to  notify  the  meeting. 

There  were  no  by-laws  of  the  town  prescribing  how  warrants  for 
meetings  should  be  served  ;  but  it  had  been  the  usual  custom  of 
the  town  to  call  meetings  by  posting  the  warrant  or  notice  in  some 
public  place  seven  days  before  the  da}'  of  the  meeting.  Charles 
H.  Mingo  and  Thomas  Jeflfers,  who  signed  said  notice,  were  two  of 
the  three  selectmen  of  the  town. 

On  Nov.  4,  1879,  the  meeting  was  held  at  the  school-house,  and 
the  notice  posted  on  the  outside  was  taken  down  and  read  bj'  the 
town  clerk  at  the  opening  of  the  meeting  at  ten  o'clock  a.  m.  The 
polls  were  opened  at  ten  A.  m.  and  kept  open  until  two  p.  m.,  and 
votes  were  cast  and  received  for  governor  and  all  other  officers 
voted  for  at  annual  elections,  including  county  commissioner.  All 
the  proceedings  of  the  meeting  were  regular  and  in  due  form, 
except  as  above  stated.  The  whole  number  of  registered  voters  in 
said  town  at  that  time  was  thirtj'-thrce.  Of  this  number  there  were 
present  at  the  meeting  twenty  five,  of  whom  twentj'-four  voted  for 
the  defendant  and  one  did  not  vote  for  any  person.  Of  the  other 
eight  who  were  not  present  at  the  meeting,  two  were  absent  at  sea 
and  had  been  so  absent  at  sea  for  more  than  two  weeks  prior 
to  the  meeting,  one  was  confined  to  his  bed  at  his  house  by 
sickness,  so  that  he  was  unable  to  attend  the  meeting,  one  was 
absent  at  work  in  another  town  some  twenty  miles  distant, 
and  had  been  so  absent  for  more  than  two  weeks  prior  to  the 
meeting,  and  both  the  one  last  named  and  the  remaining  four 
had  been  verbally  notified  in  fact  of  the  time  and  place  of 
the  meeting,  and  that  a  county  commissioner  was  to  be  voted  for, 
but  did  not  choose  to  go,  and  did  not  remain  away  from  said  meet- 
ing on  account- of  any  want  of  actual  notice  of  the  same. 

Upon  the  foregoing  facts,  so  far  as  they  were  competent,  the 
judge  was  of  opinion  that  the  meeting  in  Gay  Head  was  void  for 
want  of  legal  notice,  and  that  the  twenty-four  votes  cast  there  for 
the  defendant  should  not  be  counted  for  him,  and  that  he  should 
be  ousted  from  his  office  ;  but  reserved  the  questions  arising  upon 
the  foregoing  facts  for  the  determination  of  the  full  court. 

J.  Brows  for  the  Commonwealth. 
H.  M.  KsowLTOS  for  the  defendant. 


OPINIONS    OF   THE    COURT.  4G3 

Field,  J.  :  The  question  here  presented  for  decision  is  wliether 
the  votes  cast  for  county  commissioner  at  the  election  in  Gay  Head 
should  be  counted  or  rejected  in  determining  who  was  elected  county 
commissioner  of  the  county  of  Dukes  County  at  the  annual  election 
held  Nov.  4.  1879. 

The  alleged  illegality  in  the  election  is  the  want  of  legal  notice 
of  the  meeting  for  election.  No  objection  is  made  that  the  meet- 
ing was  not  held  at  the  proper  place,  or  opened  at  the  proper  hour, 
or  kept  open  the  requisite  length  of  time,  or  that  all  the  proceedings 
at  the  meeting  were  not  according  to  law. 

The  Gen.  Sts.,  c.  18,  §  21,*  provide  that  "every  town  meeting 
shall  be  held  in  pursuance  of  a  warrant  under  the  hands  of  the  select- 
men, directed  to  the  constables,  or  some  other  persons  appointed 
b}^  the  selectmen  for  that  purpose,  who  shall  forthwith  notify'  such 
meeting  in  the  manner  prescribed  by  the  by-laws  or  a  vote  of  the 
town." 

Meetings  for  the  election  of  national,  state,  district  and  county 
officers,  are  not,  strictly  speaking,  town  meetings,  but  the  St.  of 
1874,  c.  376.  §  21,  provides  that,  "  such  meetings  in  towns  shall  be 
called  b}'^  the  selectmen  in  the  manner  ordered  by  the  towns,  and 
the  warrant  for  notifying  such  meetings  shall  specif}'  the  time  when 
the  polls  for  the  choice  of  the  several  officers  shall  be  opened,  and 
the  hour  at  which  the  polls  may  be  closed."  f  The  provisions  in  the 
General  Statutes  for  calling  town  meetings  are  substantial! v  the 
same  as  in  the  Rev.  Sts.,  c.  15,  §§  19-22,  which  were  taken  from  the 
St.  of  1785,  c.  75,  §  5.  The  provisions  of  the  St.  of  1874,  c.  376, 
§§  19-21,  24,  for  calling  meetings  for  the  election  of  national,  state, 
district  and  county  officers,  ai'e  similar  to  those  contained  in  the 
Gen.  Sts.,  c.  7,  §§  2,  3,  and  the  Gen.  Sts.,  c.  8,  §  7,  and  these  were 
taken  in  substance  from  the  Sts.  of  1857,  c.  311,  1841,  c.  70, 
1839,  c.  42,  and  the  Revised  Statutes. 

The  Rev.  Sts  ,  c.  5,  §  5,  provide  that,  "  all  town  meetings,  for  the 
election  of  representatives  in  the  general  court,  shall  be  notified  by 
the  selectmpn  of  each  town  in  the  manner  legally  established  in 
such  town  for  calling  other  town  meetings,"  and  the  Rev.  Sts.  c.  6,  § 
3,  require  the  selectmen  of  the  several  towns  "  in  the  manner  directed 
by  law  for  holding  elections  therein,"  to  cause  the  inliabitants  to 
assemble  and  give  in  their  votes  for  representatives  in  Congress  ; 
and  §  14  of  the  same  chapter  requires  the  selectmen  of  the  several 
towns  "  in  the  manner  prescribed  by  law  for  notifying  town  meet- 
ings," to  cause  the  inhabitants  to  assemble  and  give  in  their  votes 
for  electors  of  president  and  vice-president. 

•  Now  Pub.  Sts.,  cb.  27,  §  54.  t  Now  Pub.  Sts.,  ch.  7,  §  3. 


4G4  MASSACHUSETTS   ELECTION   CASES — 1853-1885. 

The  St.  of  1795,  c.  55,  §  1,  in  regulating  the  election  of  repre- 
sentative in  the  legislature  of  the  Commonwealth  provides  that 
"  it  shall  be  the  duty  of  such  selectmen  to  summon  and  notify  such 
meeting  in  the  manner  there  legallj"  established  for  calling  other 
town  meetings,"  and  §  2  of  the  same  act  imposes  a  penalty  upon 
selectmen  "  who  shall  neglect  to  call  meetings  of  the  inhabitants 
and  others  privileged  there  to  vote  for  the  election  of  governor, 
lieutenant-governor,  councillors  and  senators,  and  to  give  due 
warning  of  the  time  end  place  of  such  meetings  as  required  by  the 
Constitution  of  this  Commonwealth,"  &c.  The  Constitution  of  the 
Commonwealth  as  originally  adopted,  c.  1,  §  2,  art.  2,  required 
that  the  meeting  for  the  election  of  senators  and  councillors  should 
"  be  called  bv  the  selectmen,  and  warned  in  due  course  of  law,  at 
least  seven  da3-s  before  the  first  Monday  in  April,"  &c. 

The  statutes  we  have  cited,  as  well  as  other  provisions,  particu- 
larly those  relating  to  elections  to  fill  vacancies,  all  require  or  im- 
ply that  a  meeting  for  election  must  be  called  by  a  warrant  issued 
by  the  selectmen,  and  tend  to  show  that  the  provision  in  the  St.  of 
1874,  c.  37G,  §  21,  that  "such  meetings  shall  be  called  by  the 
selectmen  in  the  manner  ordered  by  the  towns,"  means  that  such 
meetings  shall  be  called  in  the  same  manner  as  town  meetings, 
namely,  by  "  a  warrant  under  the  hands  of  the  selectmen,  directed 
to  the  constables  or  some  other  persons  appointed  by  the  selectmen 
for  that  purpose,  who  shall  forthwith  notify  such  meeting  in  the 
manner  prescribed  by  the  by-laws  or  a  vote  of  the  town." 

It  is  not  necessary  to  decide  this  ;  but,  if  it  be  assumed,  it 
does  uol  therefore  necessarily  follow  that  the  notice  in  this  case 
was  fatally  defective,  or  that  the  election  held  was  void.  The 
report  finds  that  there  were  no  "  by-laws  of  the  town  prescribing 
how  warrants  for  meeting  shall  be  served,"  and  it  does  not  appear 
that  there  was  any  vote  of  the  town  on  the  subject ;  but  the 
notice  given  was  posted  more  than  seven  days  before  the  day  of 
election  in  a  public  place,  which  was  according  to  the  usual  cus- 
tom of  the  town.  This  would  be  a  reasonable  notice  for  a  town 
meeting,  in  the  absence  of  any  by-law  or  vote  of  the  town. 
Hand  V.  Wilder,  11  Cush.  294. 

The  notice  was  signed  by  only  a  majority  of  the  selectmen, 
which  is  not  a  fatal  objection.  Reynolds  v.  New  Salem,  6  Met. 
340.  The  want  of  the  addition  of  the  name  of  their  office  to 
their  signatui-es  cannot  be  held  necessarily  to  render  the  notice 
void. 

The  notice  called  upon  the  inhabitants  "to  vote  for  govern- 
ment officers."  There  is  no  express  provision  of  the  statute  that 
the  warrant  shall  specify  all  the  officers  to  be  voted  for.     It  has 


OPINIONS   OF   THE   COURT.  465 

been  held  that  an  article  in  a  warrant  for  a  town  meeting  callinar 
upon  the  inhabitants  "to  choose  all  necessary  town  officers  "is 
sufficient  for  the  election  of  such  officers  as  may  lawfully  be 
chosen  by  towns.  Williams  v.  Lunenburg  School  District,  21 
Pick.  75  ;  Sherman  v.  Torreij,  99  Mass.  472. 

The  notice  did  not  specify  the  number  of  representatives  to  be 
voted  for,  nor  specifically  call  upon  the  voters  to  bring  in  their 
votes  on  one  ballot  for  such  representatives  (see  St.  1874,  c.  376, 
§  24)  ;  but  this  does  not  concern  the  election  of  a  county  com- 
missioner. The  provision  in  the  St.  of  1874,  c.  376,  §  19,  that 
"  the  mayor  and  aldermen  and  selectmen  shall  decide  whether 
such  officers  shall  be  voted  for  on  one  ballot,  or  at  the  same  time 
on  separate  ballots,  and  shall  give  notice  thereof  in  the  warrant 
calling  the  meeting,"  we  regard  as  directory. 

The  notice  was  not  directed  to  "  constables  or  some  other  per- 
sons appointed  by  the  selectmen  for  that  purpose  ; "  it  was  not 
served  by  a  constable  or  a  person  appointed  by  the  selectmen  to 
serve  it,  and  there  was  no  return  of  service.  It  is  unnecessary 
to  consider  whether  it  might  not  be  presumed  that  the  inhabi- 
tants of  Gay  Head,  qualified  to  vote,  had  the  same  actual  notice 
of  this  election  as  they  would  have  had  if  a  constable  had  posted 
the  notice  in  the  manner  it  was  posted  by  the  selectmen,  for  the 
facts  found  leave  no  room  for  presumptions.  It  is  found  as  a 
fact,  that  but  eight  of  the  registered  voters  were  absent  from  the 
meeting,  and  of  those  present,  all  voted  for  county  commissioner 
but  one  ;  and  of  the  eight  who  were  not  present,  five  had  actual 
notice  of  the  time  and  place  of  the  meeting  and  that  a  county 
commissioner  was  to  be  voted  for.  and  did  not  remain  away  from 
the  meeting  on  account  of  any  want  of  notice ;  and  of  the 
remaining  three,  two  were  absent  at  sea  and  had  been  absent 
more  than  two  weeks  prior  to  the  meeting,  and  one  was  confined 
to  his  bed  by  sickness  and  was  unable  to  attend  the  meeting. 
The  defendant  had  a  plurality  of  eight  votes  in  all  the  towns  in 
the  count}^. 

If  these  facts  are  competent,  it  becomes  apparent  that  the  defects 
in  the  notice  or  warrant  and  in  the  mode  of  serving  it  worked  no 
injury  and  that  the  election  was  as  full}'  attended  as  if  all  the  pro- 
visions of  the  law  in  calling  the  meeting  had  been  strictly  followed. 
These  facts  are  competent,  unless  the  provisions  of  the  statute  which 
have  been  disregarded  are  strictly  mandator}',  and  we  are  of  opinion 
that  the}'  are  not. 

It  is  not  necessary  to  determine  whether  this  notice,  served  as  it 
was,  would  be  a  good  warrant  for  a  town  meeting.  There  are 
many  reasons  why  defects  in  the  call  of  a  meeting  for  the  election 


406  MASSACHUSETTS    ELECTION   CASES — 1853-1885. 

of  national,  state,  district  and  county  officers  should  not  always  be 
followed  b}'  the  sarae  consequences  as  similar  defects  in  the  call  for 
a  town  meeting.  Town  meetings  are  in  a  sense  legislative  assem- 
blies, held  at  a  time  and  for  the  transaction  of  business  not  defi- 
nitel}^  prescribed  by  law.  The  annual  town  meeting  must  indeed 
be  held  in  February,  March  or  April,  but  the  day  must  be  deter- 
mined b}^  the  warrant,  and  other  town  meetings  must  be  held  at 
such  time  as  the  selectmen  may  order  they  must  be  held  in  pur- 
suance of  a  warrant ;  the  warrant  must  express  the  time  and  place 
of  the  meeting  and  the  subjects  to  be  acted  upon  ;  the  selectmen 
must  insert  in  the  warrant  all  subjects  which  ten  or  more  voters 
shall  in  writing  request  to  be  inserted  ;  and  if  the  selectmen  un- 
reasonably refuse  to  call  a  town  meeting,  any  justice  of  the  peace 
of  the  county,  upon  the  application  of  ten  or  more  legal  voters  of 
the  town,  may  call  such  a  meeting  by  a  warrant  under  his  hand. 
Gen.  Sts.,  c.  18,  §§  20-23. 

The  warrant  for  a  town  meeting  is,  as  its  name  imports,  the 
warrant  or  authority  under  which  the  meeting  is  held.  But  the 
annual  meeting  for  the  election  of  national,  state,  district  and 
county  officers,  is  required  bj'  law  to  be  held  on  a  day  fixed  by 
statute.  And  the  officers  to  be  elected  and  the  manner  of  hold- 
ing the  election  are  designated  and  defined  by  statute.  The  war- 
rant  for  such  meetings  is  expressly  required  to  specify  the  time 
when  the  polls  shall  be  opened  and  the  hour  at  which  thc}'  may  be 
closed,  and  to  contain  the  directions  that  the  voters  bring  in  their 
votes  on  one  ballot  or  on  separate  ballots,  which  have  been  before 
recited  ;  but  there  are  no  other  express  requirements  of  the  statute 
in  regard  to  what  the  warrant  shall  contain.  The  language  of  the 
statute  is,  that  such  meetings  shall  be  called  in  the  manner  ordered 
by  the  towns,  and  not  that  every  such  meeting  shall  be  held  in  pur- 
suance of  a  warrant,  as  in  the  case  of  towns'  meetings.  The  act- 
ual warrant  for  holding  an  annual  election  for  county  commissioner 
at  Gay  Head,  at  the  time  this  election  was  held,  was  the  Gen. 
Sts.,  c.  10,  §§  1,  6. 

The  main  purpose  of  a  warrant  for  meetings  for  such  elections 
is  to  remind  legal  voters  of  their  right  and  duty  to  vote,  and  of  the 
officers  to  be  elected,  and  at  the  same  time  to  give  them  notice  of 
the  place  where  the  election  will  be  held,  and  of  the  hour  when  the 
polls  will  be  opened  and  when  they  will  be  closed.  If  this  elec- 
tion at  Gay  Head  be  declared  void,  there  can  be  no  new  election  for 
county  commissioner  at  Gay  Head,  and  the  voters  there  will  have 
been  deprived  of  their  votes  without  fault  on  their  part,  in  conse- 
quence of  the  negligence  of  the  selectmen  of  the  town. 

If  this  negligence  is  such  that  there  may  not  have  been  a  full,  free 


OPINIONS   OF   THE   COURT.  467 

and  fair  vote,  or  such  that  the  result  of  the  election  there  cannot 
be  accuratel}'  ascertained,  this  effect  may  be  unavoidable,  but  such 
conclusion  ought  not  to  be  reached  unless  the  construction  of  the 
statutes  clearly  requires  it,  or  the  manner  in  which  the  election  was 
called  has  possibly  resulted  in  depriving  some  legal  voter  of  his 
vote,  or  has  influenced  or  rendered  uncertain  the  result  of  the  elec- 
tion ;  for  this  is  an  election  held  at  the  time,  in  the  phice,  and  for 
the  purposes  prescribed  by  law,  and  by  the  officers  authorized  by 
law  to  hold  such  an  election.  The  provisions  of  tbe  statutes  which 
have  been  disregarded  in  this  case,  we  think,  are  not  of  the  essence 
of  the  thing  required  to  be  done,  b}'  complying  with  which  jurisdic- 
tion or  authority  to  hold  an  election  was  obtained,  but  they  reg- 
ulate the  form  and  manner  in  which  the  meeting  for  an  election  re- 
quired by  law  then  and  there  to  be  held  should  be  called. 

It  is  conceded  by  the  defendant,  that  the  returns  and  certificates 
of  election,  even  when  made  in  entire  conformity  to  law,  are  but 
prima  facie  evidence  of  title  to  an  elective  office,  when  that  title  is 
tried  on  an  information  in  the  nature  of  a  quo  warranto,  and  that 
the  inquiry  goes  back  of  them  for  the  purpose  of  ascertaining 
whether  in  fact  the  defendant  has  been  legally  elected  to  the  office 
which  he  assumes  to  hold. 

There  may  indeed  be  facts  which  a  court  will  not  investigate 
or  consider,  on  the  ground  that  public  policy  or  the  laws  forbid  it ; 
but  the  facts  proved  in  this  case  are  not  of  that  character. 

The  case  which  perhaps  most  nearly  resembles  this  is  People  v. 
Peck,  11  Wend.  604  ;  but  the  following  cases,  decided  under  a  va- 
riety of  circumstances,  establish  the  general  principles  which  govern 
the  case  at  bar.  People  v.  Hartwell,  12  Mich.  508  ;  Foster  v.  Scarff, 
15  Ohio  St.  582  ;  State  v.  Goetze,  22  Wis.  363  ;  State  v.  Jones, 
19  lud.  356  ;  DuPage  County,  v.  People,  65  111.  360  ;  Cleland  v. 
Porter,  74  111.  76  ;  People  v.  Cook,  4  Selden,  67  ;  People  v.  Wilson, 
62  N.  Y.  186. 

The  result  is  that  the  election  at  Gay  Head  is  not  void,  and  that 
this  defendant  was  duly  elected  to  the  office  he  holds. 

We  have  no  occasion  to  consider  whether  it  would  have  changed 

the  result  we  have  reached,  if  the  conduct  of  the  selectmen  in  not 

complying  with  the  statutory  requirements  for  calling  the  meeting 

had  been  fraudulent,  although  the  fraud  had  produced  no  effect 

upon  the  election. 

Information  dismissed. 


468  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 


OPINION  OF  THE  JUSTICES  TO  THE  GOVERNOR  AND  COUNCIL. 

136  Mass.  583  (1883). 

By    Chief  Justice  Morton,    and    Associate    Justices,  Field,    Devens, 
W.   Allen,   C.    Allen,   Colburn  and  Holjies. 

Under  the  Pub.  Sts.  c.  7,  \J  45,  providiag  that  the  governor,  with  five  at  least  of  the 
council,  shall  "  examine  "  the  returns  of  votes,  made  by  the  city  and  town  clerks  to 
the  secretary  of  the  Commonwealth,  under  ^  40,  and  issue  his  summons  to  such 
persons  as  appear  to  be  chosen,  the  governor  has  no  power  to  recount  the  votes. 

Under  the  Pub.  Sts.  c.  7,  §  26,  the  board  of  aldeiTuen  of  a  city,  upon  a  proper  state- 
ment in  writing  by  ten  or  more  qualLfled  voters  of  any  ward,  filed  with  the  city  clerk 
within  three  days  following  any  election,  has  the  jurisdiction  and  authority  to  open 
the  envelope  containing  the  ballots  thrown  at  the  election,  and  recount  the  same, 
including  those  for  the  offices  of  sheriff  and  district  attorney. 

Under  the  Pub.  Sts.  c  7,  ^  36,  pro\iding  for  the  filing,  by  ten  or  more  qualified 
voters  of  a  city,  of  "a  statement  in  writing  that  they  have  reason  to  believe  that  the 
returns  of  the  ward  officers  are  erroneous,  specifying  wherein  they  deem  them  in 
error,"  a  statement  that  the  signers  have  reason  to  believe  that  the  returns  of  the 
ward  officers  are  erroneous  in  regard  to  certain  officers  mentioned  is  sufficient. 

On  Nov.  23,  1883,  the  governor  ond  council  adopted  an  order 
requiring  the  opinion  of  the  justices  of  the  supreme  judicial  court 
upon  the  following  important  questions  of  law  : 

1.  It  being  the  dut\'  of  the  governor  and  council  to  transmit  a 
certificate  of  choice  to  the  district  attorneys  and  sheriffs  who  have 
been  elected  at  any  election  duly  held,  in  determining  who  is 
chosen,  have  the  governor  and  council  the  power  to  examine  and 
recount  the  ballots  given  in  such  elections  in  the  several  cities  and 
towns,  or  either  of  them,  in  order  to  ascertain  the  true  result 
thereof,  the  ballots  having  been  sealed  up  and  preserved  according 
to  the  law  by  the  clerks  of  the  several  cities  and  towns,  within  the 
counties  and  districts  respectively,  more  than  one  person  claiming 
an  election  to  such  office  and  contesting  the  election  of  another 
person  thereto  before  the  governor  and  council? 

2.  Have  boards  of  aldermen  of  cities,  upon  proper  statements 
in  writing  in  regard  to  such  election,  the  jurisdiction  and  authority 
to  open  the  envelopes  and  examine  the  returns  of  the  votes  given 
in  the  respective  cities,  and  recount  the  same,  to  determine  the 
questions  raised,  so  far  as  they  shall  relate  to  sheriffs  and  district 
attorney's,  and  alter  and  amend  such  ward  returns  as  have  been 
proved  to  be  erroneous? 

3.  Is  a  statement  in  writing  in  the  words  following,  viz.  :  "  The 
undersigned,  qualified  voters  of  ward  one  of  the  city  of  Lawrence, 
hereby  certify  that  they  have  reason  to  believe  that  the  returns  of 


OPINIONS    OF   THE   COURT.  469 

I 

the  ward  officers  of  said  ward  of  the  votes  cast  at  the  annual 
election  held  on  November  sixth,  A.  D.  1883,  are  erroneous,  and 
that  they  deem  said  returns  to  be  in  error  in  reference  to  the  offices 
of  sheriff  and  district  attorney,"  when  signed  by  ten  or  more  qual- 
ified voters  in  each  of  the  several  wards  in  a  city,  such  proper  and 
specific  "  statement  in  writing  "  of  errors,  as  to  give  jurisdiction 
and  authority  to  the  board  of  aldermen  to  make  an  examination  and 
recount  of  such  ballots,  under  chapter  7,  section  36,  of  the  Public 
Statutes? 

On  Nov.  27,  1883,  the  justices  of  the  supreme  judicial  court 
returned  the  following  opinion  :  — 

To  His  Excellency  the  Governor  and  the  Honorable  Council  of  the  Com- 
monivealth  of  Massachusetts : 

The  justices  of  the  supreme  judicial  court  have  taken  into  con- 
sideration the  questions  proposed  to  them  by  His  Excellency  the 
Governor  and  the  Honorable  Council,  and  respectfully  submit  the 
following  opinion : 

The  answers  to  the  questions  depend  upon  the  construction  and 
effect  of  the  Public  Statutes,  which  repealed  and  superseded  all 
prior  statutes  upon  the  subject. 

Chapter  7  of  the  Public  Statutes  provides  that,  in  every  election 
for  national,  state,  county  and  district  officers,  the  officers  of  each 
ward  in  cities,  and  the  selectmen  of  each  town,  shall  cause  all 
ballots  given  in  such  elections,  after  the  same  have  been  sorted, 
counted,  declared,  and  recorded,  to  be  secured  in  an  envelope  and 
sealed  with  a  seal  provided  for  the  purpose,  which  envelope  is  to  be 
delivered  to  the  city  or  town  clerk.     Pub.  Sts.,  c.  7,  §§  27-34. 

The  thirty-fifth  section  pi'ovides,  that,  "  if  within  thirty  da3's  next 
following  the  day  of  an  election,  a  person  who  received  votes  for 
an}^  office  at  said  election,  b}'^  himself,  his  agent  or  attorney,  serves 
upon  the  clerk  of  any  city  or  town  a  statement  in  writing,  claiming 
an  election  to  such  office,  or  declaring  an  intention  to  contest  the 
election  of  any  other  person  who  has  received  or  who  may  receive, 
a  certificate  of  election  for  the  same,  such  clerk  shall  retain  the  en- 
velope containing  the  ballots  thrown  at  such  election,  sealed  as 
provided  by  law,  subject  to  the  order  of  the  bod}^  to  which  either 
of  said  persons  may  claim  or  be  held  to  have  been  elected,  or  until 
such  claim  is  withdrawn,  or  such  election  is  decided  by  the  author- 
ity competent  to  determine  the  same." 

The  thirt^'-sixth  section  provides  that  "  if  within  three  days  next 
following  the  day  of  any  election,  ten  or  more  qualified  voters  of 
any  ward  file  with  the  city  clerk  a  statement  in  writing  that  they 
have  reason  to  believe  that  the  returns  of  the  ward  officers  are  er- 
roneous, specifying  wherein  they  deem  them  in  error,  said  clerk 


470  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

shall  forthwith  transmit  such  statement  to  the  board  of  aldermen 
or  the  committee  thereof  appointed  to  examine  the  returns  of  said 
election.  The  board  of  aldermen,  or  their  committee,  shall  there- 
upon, and  within  five  daj's  (Sunday  excepted)  next  following  the 
da}'  of  election,  open  the  envelope  and  examine  the  ballots  thrown 
in  said  ward,  and  determine  the  questions  raised  ;  they  shall  then 
again  seal  the  envelope,  either  with  the  seal  of  the  cit}^  or  a  seal 
provided  for  the  purpose,  and  indorse  upon  said  envelope  a  certi- 
ficate that  the  same  has  been  opened  and  again  sealed  b}'  them  in 
conformity  to  law  ;  and  the  envelope,  sealed  as  aforesaid,  shall  be 
returned  to  the  city  clerk,  who,  upon  the  certificate  of  the  board  of 
aldermen,  or  of  their  committee,  shall  alter  and  amend  such  of 
the  ward  returns  as  have  been  proved  to  be  erroneous,  and  such 
amended  returns  shall  stand  as  the  true  returns  of  the  ward." 

Subsequent  sections  of  the  same  chapter  provide  that  cit}''  and 
town  clerks  shall,  within  ten  days  of  the  da}'  of  an  election  for  cer- 
tain state,  count}',  and  district  officers,  including  sheriffs  and  dis- 
trict attorneys,  "  transmit  copies  of  the  records  of  the  votes,  attest- 
ed by  them,  certified  by  the  mayor  and  aldermen  or  selectmen,  and 
sealed  up,"  to  the  secretary  of  the  Commonwealth,  who  is,  upon 
receiving  such  returned  copies,  to  transmit  them,  as  received,  with 
their  seals  unbroken,  to  the  governor  and  council,  "and  the  gov- 
ernor, with  five  at  least  of  the  council,  shall,  as  soon  as  may  be, 
examine  them  ;  "  and,  in  the  cases  of  sheriffs  and  district  attorneys, 
the  governor  is  thereupon  to  issue  a  certificate  of  election  to  such 
persons  as  appear  to  be  elected.     Pub.  Sts.,  c.  7,  §§  40-45. 

The  provisions  of  the  thirty-sixth  section  are  clear  and  explicit, 
and  seem  to  us  to  admit  of  but  one  construction.  They  authorize 
and  require  the  boards  of  aldermen  of  cities  to  recount  the  ballots 
cast  in  any  ward,  upon  the  filing  of  the  proper  statement  in  writing, 
by  ten  or  more  qualified  voters  of  tlie  war  1,  that  they  have  reason 
to  believe  that  the  returns  of  the  ward  officers  are  erroneous. 

By  the  statutes  above  cited,  the  governor  and  council  are  made 
a  board  to  examine,  as  soon  as  may  be  after  receiving  them, 
the  returns  of  votes  from  the  cities  and  towns  for  sheriffs,  district 
attorneys,  and  other  officers  named,  and  thereupon  the  governor 
is  to  issue  certificates  to  such  persons  as,  upon  such  examination, 
appear  to  be  electeil.  We  are  unable  to  find  in  the  statutes  now 
in  force  any  provisions  which  expressly  or  by  implication  aulliorize 
tliem  to  recount  the  ballots  thrown  either  in  cities  or  towns.  The 
thirty-fifth  section,  which  we  have  cited  above,  was  intended  to 
provide  for  the  preservation  of  the  ballots  as  evidence  while  any 
contest  exists  as  to  the  election.  The  last  clause,  providing  for  the 
keeping  of  the  ballots  until  "  such  election  is  decided  by  the  au- 


OPINIONS    OF    THE    COURT.  471 

thority  competent  to  determine  the  same,"  does  not  confer  upon  any 
board  authority  to  recount  the  ballots,  but  merely  provides  for  their 
safe  keeping  as  evidence  to  be  used  before  such  body,  board,  or 
tribunal  as,  by  other  provisions  of  law,  has  the  power  to  recount 
them. 

In  1875,  the  justice  of  the  supreme  judicial  court  gave  to  the  gov- 
ernor and  council  an  opinion  that  it  was  competent  for  them  to  re- 
count the  ballots  cast  for  district  attorney  in  towns,  but  not  those 
cast  in  cities.  117  Mass.  599.  This  opinion  was  based  upon 
the  statute  of  1874,  chapter  376,  section  4:7,  which  provides  that 
the  clerk  of  a  town  should  carefully'  preserve  the  envelope  contain- 
ing the  ballots,  "  subject  to  the  order  of  the  legislative  bod}'  to 
■which  such  person  claims  an  election,  or,  in  other  cases,  of  the 
board  required  by  law  finally  to  examine  the  returns  and  issue  cer- 
tificates of  election  ;  and  in  all  such  cases  said  legislative  body  or 
board  may  take  and  open  said  envelope  and  recount  the  ballots 
thus  preserved."  This  gave  the  governor  and  council  express  au- 
thorit}'  to  recount  the  ballots  cast  in  towns  for  district  attorney  or 
for  sheriff. 

But  this  provision  was  repealed  b}'  the  statute  of  1876,  chapter 
188,  and  instead  thereof  the  provisions  were  enacted  as  they  are 
now  found  in  the  Public  Statutes.  This  repeal  revoked  the  au- 
thorit}'  of  the  governor  and  council  to  recount  the  ballots  cast  in 
towns. 

The  opinion  then  given,  so  far  as  it  aflTects  the  right  to  recount 
such  ballots,  has  no  application  under  the  laws  now  in  force,  but  it 
shows  that  the  governor  and  council  then  had,  and  now  have,  no 
right  to  recount  the  ballots  cast  in  cities  ;  and,  by  its  course  of 
reasoning,  strongh'  tends  to  show  that,  under  the  laws  as  they 
now  exist,  there  is  no  authority  in  the  governor  and  council  to  re- 
count the  ballots  cast  in  towns. 

If  a  statement  in  writing  is  filed  within  three  da3's  of  an  election 
by  ten  or  more  voters  of  a  ward,  and  it  is  accepted  and  acted  upon 
by  the  board  of  aldermen,  who  make  a  recount,  and  the  city  clerk 
transmits  this  amended  return  to  the  secretarj^  of  the  Common- 
wealth, it  may  well  be  doubted  whether  it  would  be  competent  for 
the  governor  and  council  to  investigate  the  regularity  of  the  action 
of  the  board  of  aldermen  and  cit}'  clerk,  and  reject  tbe  return  upon 
the  ground  of  some  formal  defect  existed  in  the  original  statement 
in  writing.  But  however  this  ma^'  be,  we  are  of  opinion  that  the 
statement  in  this  case  was  sufficient. 

The  statute  contemplates  that  the  statement  is  to  be  made  by 
plain  people,  and  technical  and  narrow  rules  of  constructiou  ought 
not  to  be  applied  to  it.     It  is  sufficient  if  it  specifies  with  reason- 


472  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

able  clearness  in  what  respect  the  returns  of  the  ward  officers  are 
supposed  to  be  erroneous. 

The  statement  of  which  a  copy  is  given  in  the  third  question, 
states  that  the  returns  of  the  ward  officers  of  the  votes  cast  are  be- 
lieved to  be  erroneous  in  regard  to  the  offices  of  sheriff  and  district 
attorne}'.  Ever3-body  would  understand  this  to  mean  that  there  was 
believed  to  be  a  miscount  of  the  votes  for  these  officers.  It  is  im- 
possible in  the  nature  of  things  to  specify  the  particular  errors  in 
detail,  and  we  are  of  opinion  that  the  statement  referred  to  was 
sufficient,  and  required  the  aldermen  to  make  a  recount. 

From  these  considerations,  it  follows  that  the  first  question  pro- 
posed to  us  must  be  answered  in  the  negative,  and  the  second  and 
third  questions  in  the  affirmative. 

Boston  November  27, 1883. 


SUPPLEMENT   II. 


DIGEST   OF    DECISIONS    OF  THE   SUPREME  JUDICIAL   COURT 
RELATING   TO  INHABITANCY  AND  RESIDENCE. 

1  Mass.  to  138  Mass.,  Inclusive. 

1.  GENERAL  PRINCIPLES  AND  RULES  OP  DOMICILE. 

2.  PARTICULAR  CASES. 

3.  EVIDENCE  UPON  QUESTIONS  OF  DOMICILE. 


k 


1.  General  Principles  and  Rules. 

Object  of  requiring  domicile.  The  objects  intended  to  be  secured 
by  the  constitutional  limitation  of  the  right  of  suffrage  to  the  town 
in  which  the  voter  has  his  home,  were  opportunity  to  ascertain  the 
qualifications  of  the  voter,  and  the  prevention  of  fraud  upon  the 
public  by  multiplying  the  votes  of  the  same  person.  Parker,  J., 
Putnam  V.  Johnson^  10  Mass.  488,  502. 

Meaning  of'-'-  Inhabitant"  and  "  Resident."  The  word  "  inhab- 
itant" as  used  in  the  Constitution  in  fixing  eligibilit}'  to  office,  and 
the  word  "  resident"  in  the  amendment  fixing  the  qualifications  of 
voters,  are  identical  in  meaning  ;  and  both  of  these  expressions  are 
equivalent  to  the  term  "domicile";  and  therefore  the  right  of 
voting  or  being  elected  to  office  is  confined  to  the  place  where  one 
has  his  domicile,  his  home,  or  his  place  of  abode.  Opinion  of 
Justices,  o  Met.  587,  588  ;  Abington  v.  I^orth  Bridgeivater,  23  Pick. 
170,  176;  Thorndikex.  Boston,  1  Met.  242,  245;  Sears  v.  Bos- 
ton, 1  Met.  250,  252  ;  Blanchard  v.  Stearns,  5  Met.  298,  304  ; 
Otis  V.  Boston,  12  Cush.  44,  49  ;  Bulkley  v.  Williamstown,  3  Graj', 
493,  494  ;  Borland  v.  Boston,  132  Mass.  89  ;  Lee  v.  Boston,  2  Gray, 
484,  490. 

Definition  and  tests  of  Domicile.  It  is  difficult  to  give  an  exact 
definition  of  habitancy.  In  general  terms,  one  may  be  designated 
as  an  inhabitant  of  that  place,  which  constitutes  the  principal  seat 

[473] 


474  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

of  his  residence,  of  his  business  pursuits,  connections,  attachments, 
and  of  his  political  and  municipal  relations.  It  is  manifest,  there- 
fore, that  it  embraces  the  fact  of  residence  at  a  place,  with  the 
intent  to  regard  it  and  make  it  his  home.  The  act  and  intent  must 
concur,  and  the  intent  may  be  inferred  from  declarations  and 
conduct.  It  is  often  a  question  of  great  difficulty,  depending 
upon  minute  and  complicated  circumstances,  leaving  the  question 
in  so  much  doubt,  that  a  slight  circumstance  may  turn  the  balance. 
In  such  a  case,  the  mere  declaration  of  the  party,  made  in  good 
faith,  of  his  election  to  make  the  one  place  rather  than  the  other, 
his  home,  would  be  sufficient  to  turn  the  scale.  But  it  is  a  ques- 
tion of  fact  for  the  jury,  to  be  determined  from  all  the  circum- 
stances of  the  case.  The  election  of  a  man  to  pay  taxes  in  one 
town  rather  than  another  may  be  a  good  motive  and  justifiable 
reason  for  changing  his  habitancy  ;  and  if  such  election  is  followed 
up  by  corresponding  acts,  by  which  he  ceases  to  be  an  inhabitant 
of  tlie  one,  and  becomes  au  inhabitant -of  the  other,  his  object  may 
be  legally  accomi)lished.  But  such  an  election  to  be  taxed  in 
one  town  rather  than  another  is  only  one  circumstance,  bearing 
upon  the  question  of  actual  habitancy,  and  to  be  taken  in  connec- 
tion with  the  other  circumstances,  to  determine  the  principal  fact. 
Shaw,  C.  J.,  Lyman  v.  Fiske,  17  Pick.  231,  234.  And  see  Har- 
vard College  v.  Gore,  5  Pick.  375  ;  Makepemce  v.  Zee,  cited  in 
5  Pick.  378  ;   Thayer  v.  Bo  ton,  124  Mass.  102. 

Same.  Tlie  fact  and  the  intention  —  the /art«m  and  animus  — 
must  concur  in  order  to  establish  a  legal  domicile.  Kirkland  v. 
Whatehj,  4  All.  4G2 ;  Harvard  College  v.  Gore,  5  Pick.  370; 
Holmes  v.  Greene,  7  Gray,  299,  301  ;  Lyman  v.  Fiske,  17  Pick. 
231.  The  domicile  of  origin  adheres  to  a  person  until  he  acquires  a 
domicile  somewh  're  else,  and  in  order  to  effect  a  chano;e  of  domi- 
cile,  he  must  not  only  have  had  the  intent  to  make  his  home  in 
some  other  town,  but  he  must  in  fact  have  made  his  home  there. 
The  intent  and  act  must  concur,  and  until  the  intent  was  consum- 
mated by  an  actual  removal  of  his  home,  no  change  of  domicile 
was  effected.  Morton,  J.,  Bangs  v.  Brewster,  111  Mass.  382,  384  ; 
Whitney  v.  Sherhorn,  12  All.  Ill  ;  Carnoe  v.  Freetown,  9  Gray, 
357;  Otis  V.  Bo 4m,  12  Cush.  44;  K.rkland  v.  Wha'eJy,  4  All. 
462;  Mooarv.  Haroey,  128  Mass.  219;  Wilson  v.  Terry,  11  All. 
206. 

Same.  Every  person  must  have  a  domicile  somewhere,  and  a 
man  can  have  only  one  domicile  for  one  purpose,  at  one  and  the 
same  time.  Every  one  has  a  domicile  of  origin  which  he  retains 
until  he  acquires  another ;  and  the  one  thus  acquired,  is  in  like 
manner  retained.     Shaw,  C.  J.,  Abington  v.  North  Bridgiwater, 


DIGEST    OF    CASES   ON   DOMICILE.  475 

23  Pick.  170,  177  ;  Thorndike  v.  Boston,  1  Met.  242  ;  Otis  v.  Boston, 
12  Cush.  44. 

Same.  The  question  of  domicile  depends  not  upon  proving 
particular  facts,  but  whether  all  the  facts  and  circumstances  taken 
together,  tending  to  show  that  a  man  has  his  home  or  domicile  in 
one  place,  overbalance  all  the  like  proofs  tending  to  establish  it  in 
another.  Such  an  iuquir}',  therefore,  involves  a  comparison  of 
proofs,  and  in  making  that  comparison,  there  are  some  facts,  which 
the  law  deems  decisive,  unless  controlled  and  counteracted  by 
others  still  more  stringent.  The  place  of  a  man's  dwelling-house  is 
first  regaa-ded,  in  contradistinction  to  any  place  of  business,  trade 
or  occupation.  If  he  has  more  than  one  dwelling-house,  that 
in  which  he  sleeps  or  passes  his  nights,  if  it  can  be  distin- 
guished, will  govern.  If  the  dwelling-house  is  partly  in  one  place 
and  partly  in  another,  the  occupant  must  be  deemed  to  dwell  in 
that  town,  in  which  he  habitually  sleeps,  if  it  can  be  ascertained. 
Shaw,  C.  J.,  Abington  v.  North  Bridgewater,  23  Pick.  170,  178. 

Same.  Actual  residence,  that  is,  personal  presence  in  a  place, 
is  one  circumstance  to  determine  the  domicile,  or  the  fact  of  being 
an  inhabitant ;  but  it  is  far  from  being  conclusive.  A  seaman  on 
a  long  voyage,  and  a  soldier  in  actual  service,  maj-  be  respectively 
inhabitants  of  a  place,  though  not  personally  present  there  for 
years.  It  depends,  therefore,  upon  many  other  considerations, 
besides  actual  presence.  Where  an  old  resident  and  inhabitant, 
having  a  domicile  from  his  birth  in  a  particular  place,  goes  to 
another  place  or  country,  the  great  question  whether  he  has  changed 
his  domicile,  or  whether  he  has  ceased  to  be  an  inhabitant  of  one 
place,  and  become  an  inhabitant  of  another,  will  depend  mainly 
upon  the  question  to  be  determined  from  all  the  circum- 
stances, whether  the  new  residence  is  temporary  or  permanent ; 
whether  it  is  occasional,  for  the  purpose  of  a  visit,  or  of  accom- 
plishing a  temporary  object ;  or  whether  it  is  for  the  purpose  of 
continued  residence  and  abode,  until  some  new  resolution  be  taken 
to  remove.  If  the  departure  from  one's  fixed  and  settled  abode 
is  for  a  purpose  in  its  nature  temporary,  whether  it  be  business 
or  pleasure,  accompanied  with  an  intent  to  return  and  resume 
the  former  place  of  abode  as  soon  as  such  purpose  is  accom- 
plished-; in  general,  such  a  person  continues  to  be  an  inhabitant 
at  such  place  of  abode,  for  all  purposes  of  enjoying  civil  and  po- 
litical privileges,  and  of  being  subject  to  civil  duties.  Shaw,  C.  J., 
Sears  v.  Boston,  1  Met.  250,  251. 

Same.  To  make  domicile  or  residence,  the  fact  and  intent  must 
concur.  Certain  maxims  on  the  subject  are  well  settled.  These 
are  that  every  person  has  a  domicile  somewhere  ;  and  no  person 


476  MASSACHUSETTS    ELECTION   CASES  —  1^53-1885. 

can  have  more  than  one  domicile  :^t  the  same  time,  for  one  and  the 
same  purpose.  It  follows  from  these  maxims,  that  a  man  retains 
his  domicile  of  origin  until  he  changes  it  by  acquiring  another. 
And  it  is  equally  obvious  that  the  acquisition  of  a  new  domicile 
does,  at  the  same  instant,  terminate  the  preceding  one.  Opinion 
of  Justices,  5  Met.  587,  589  ;  McDaniel  v.  King,  5  Cush.  469. 

Same.  A  person  cannot  be  an  inhabitant  in  one  town  for  pur- 
poses of  taxation,  and  in  another  for  the  enjoyment  of  political 
privileges  or  municipal  rights.  The  being  "an  inhabitant "  is  a 
fact  first  to  be  fixed.  A  person,  who  is  an  inhabitant  in  one  town 
cannot  at  the  same  time  be  an  inhabitant  of  any  other  ;  and  there 
are  facts  and  circumstances  attending  every  man's  personal,  social 
and  relative  condition,  which  deteimine  in  what  town  he  is  an  inhab- 
itant, and  these  facts  and  circumstances  are  capable  of  judicial 
proof.     Otis  V.  Boston,  12  Cush.  44. 

Same.  The  general  rule,  and  for  practical  purposes,  a  fixed 
rule,  is,  that  a  man  must  have  a  habitation  somewhere  ;  he  can 
have  but  one  ;  and  therefore  in  order  to  lose  one,  he  must  acquire 
another.  This  is  the  test,  the  practical  test ;  and  it  is  hardly 
necessary  to  saj^  how  important  it  is  to  have  a  practical  rule,  and 
a  general  rule.  One  of  the  fixed  rules  on  the  subject  is  this  ;  that 
a  purpose  to  change,  unaccompanied  b}'  actual  removal  or  change 
of  residence,  does  not  constitute  a  change  of  domicile.  The  fact 
and  the  intent  must  concur.  Tbe  person  must  remove  without  the 
intention  of  going  back.  He  cannot  abandon  one  domicile  without 
acquiring  another.  If  he  goes  into  another  state,  and  returns  for 
his  famil3%  his  personal  presence  there,  concurring  with  the  intent, 
may  fix  his  domicile  there.  But  if  he  has  not  previously  removed 
to  the  other  state,  he  has  not  acquired  a  domicile  there,  or  lost  one 
here.     Shaw,  C  J.,  Bulkley  v.  Williamstown,  3  Gray,  493,  495. 

Acquisition  of  new  Domicile.  To  prove  a  change  in  domicile  it 
must  be  made  to  appear,  not  only  that  the  old  domicile  has  been 
abandoned,  but  also  that  a  new  one  has  been  acquii-ed  ;  so  that  a 
domicile  being  once  fixed  will  continue,  notwithstanding  the  absence 
of  the  party,  until  there  is  a  substitution  of  a  new  one.  The  inten, 
tion  to  abandon,  and  actual  residence  in  another  place,  if  not 
accompanied  with  the  intention  of  remaining  there  permanently, 
or  at  least  for  an  indefinite  time  will  not  produce  a  change  of 
domicile.     Wilde,  J,,  Jennison  v.  Hapgood,  10  Pick.  77,  98. 

Same.  Domicile  of  origin  or  domicile  acquired  remains  until  a 
new  one  is  acquired.  Native  domicile  is  not  so  easily  changed  as 
acquired  domicile,  and  more  easily  reverts.  A  man  can  have  but 
one  domicile  at  the  same  time  for  the  same  purpose.     Change  of 


DIGEST    OF    CASES    ON    DOMICILE.  477 

domicile  does  not  depend  so  much  upon  the  intention  to  remain  in 
the  new  place  for  a  definite  or  indefinite  period,  as  upon  its  being 
without  an  intention  to  return.  An  intention  to  return,  however, 
at  a  remote  or  indefinite  period,  to  the  former  place  of  actual  resi- 
dence will  not  control,  if  the  other  facts  which  constitute  domicile 
all  give  the  new  residence  the  character  of  a  permanent  home  and 
place  of  abode.  The  intention  and  actual  fact  of  residence  must 
concur,  when  such  residence  is  not  in  its  nature  temporary. 
There  is  a  right  of  election  by  expressed  intention,  only  where  the 
facts  of  residence  are  to  some  extent  ambiguous.  Colt,  J.,  Halletl 
V.  Bassett,  100  Mass.   167,  170. 

Same.  A  person  cannot  be  said  to  lose  his  domicile  or  residence 
by  leaving  it  with  an  uncertain,  indefinite,  half-formed  purpose  to 
take  up  his  residence  elsewhere.  It  would  be  more  correct  to  saj-, 
that  he  would  not  lose  his  residence  un*^il  he  had  gone  to  a  new  one, 
with  a  fixed  purpose  to  remain  there  and  not  to  return  to  his  former 
home.  Until  his  purpose  to  remain  had  become  fixed,  he  could  not 
be  said  to  have  abandoned  his  former  residence.  The  domicile  of 
a  party  may  be  considered  as  remaining  in  a  place  when  he  returns 
to  it  after  a  temporarv  absence,  too  short  to  enable  him  to  gain  a 
residence  elsewhere  ;  because  in  such  case,  it  may  be  reasonably 
supposed  that  he  absented  himself  with  the  intention  of  returning. 
'Bigelow,  J.,  Worceffer  v.  Wilbraham,  13  Gray.  586,  590;  Bulkley 
V.  Willi amstown,  3  Graj',  493  ;  C/ie?sea  v.  Maiden,  4:  Mass.  134; 
Lee  V.  Lenox,  15  Gray,  496. 

Same.  A  citizen  of  Massachusetts,  removing  with  his  family  to 
another  state,  and  retaining  no  dwelling  place  in  Massachusetts, 
though  retaining  his  place  of  business  here,  and  intending  to  retain 
his  domicile  here,  and  to  return  at  some  future  indefinite  period  of 
time,  has  no  domicile  in  Massachusetts.  Holmes  v.  Greene,  7  Gray» 
299,  ante,  p.  407. 

Same.  A  person  may  have  his  residence  in  a  town,  with  the 
right  to  vote  there,  if  he  is  remaining  without  intention  to  remove, 
although  he  may  have  a  lawful  settlement  in  another  town  to  which 
he  would  be  removable,  under  the  pauper  laws,  in  case  he  should 
become  chargeable.  Putnam  v.  Johnson,  10  Mass.  488. 

To  acquire  neio  Domicile,  intention  to  remain  permanenthj  not 
necessary.  In  order  to  acquire  a  new  domicile,  it  is  not  necessary 
that  the  person  should  reside  in  the  place  in  question  with  the 
purpose  of  making  it  his  permanent  home  and  residence  ;  but  it 
is  sufficient  if  he  resides  there  with  the  intention  to  remain  for  an 
indefinite  period  of  time,  and  without  an}'  fixed  or  certain  purpose 
to  return  to  his  former  place  of  abode.  Whitney  v.  She'-born,  12 
All.  111. 


478  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

Same.  One  who  is  residing  in  a  place  with  the  purpose  of 
remaining  there  for  an  indefinite  period  of  time,  and  without 
retaining  and  keeping  up  any  animus  revertendi,  or  intention  to 
return,  to  the  former  home  which  he  has  abandoned,  will  have 
his  domicile  in  the  place  of  his  actual  residence.  Wilbraham  v. 
Ludlow,  99  Mass.  587. 

Same.  Intention  of  always  staying  in  a  place  is  not  necessary 
to  obtain  a  residence  or  home  in  the  place.  "In  this  new  and 
enterprising  country  it  is  doubtful  whether  onQ-half  of  the  young 
men  at  the  time  of  their  emancipation  fix  themselves  in  any  town 
with  an  intention  of  always  staying  there.  They  settle  in  a  place 
by  way  of  experiment,  to  see  whether  it  will  suit  their  views  of 
business,  and  advancement  in  life,  and  with  an  intention  of  remov- 
ing to  some  more  advantageous  position  if  they  should  be  disap- 
pointed ;  nevertheless  they  have  their  home  in  their  chosen 
abode  while  they  remain."  Putnam  v.  Johnson,  10  Mass.  488, 
501. 

Former  Domicile  continues  until  new  Domicile  is  acquired.  A 
domicile  once  acquired  is  presumed  to  continue  until  a  subsequent 
change  is  shown.     Chicopee  v.  Whately,  6  All.  508. 

Same.  If  an  inhabitant  of  a  town  removes  to  another  town 
in  the  Commonwealth,  not  intending  to  remain  there  permanently, 
but  with  the  intention  of  not  returning  to  his  former  home,  and 
does  not  so  return,  he  loses  his  domicile  in  the  former  town. 
Mead  v.  Boxborough,  11  Cush.  3G2. 

Same.  Every  one  must  have  a  domicile  somewhere,  and  a 
domicile  once  existing  cannot  be  lost  by  mere  abandonment  even 
when  coupled  with  an  intent  to  acquire  a  new  one,  but  continues 
until  a  new  one  is  in  fact  gained.  The  former  domicile  remains 
until  both  the  intent  and  fact  of  change  of  actual  residence  to 
another  place  have  concurred  to  establish  a  new  domicile  there. 
Shaw  V.  Shaw,  98  Mass.  158. 

Residents  in  Territory  in  the  Commonwealth  ceded  to  United 
States  are  not  Voters.  Inhabitants  of  unincorporated  plantations 
in  the  Commonwealth  were  held  in  1807,  not  entitled  to  vote  for 
state  officers.     Opinion  of  Justices,  3  Mass.5G8. 

Same.  The  inhabitants  of  a  territory  owned  by  the  United 
States,  and  lying  within  this  Commonwealth,  but  over  which  the 
courts  of  this  Commonwealth  have  no  jurisdiction,  cannot  vote  in 
any  state  election.     Commonwealth  v.  Clary,  8  Mass.  72,  77. 

Same.  Persons  who  reside  on  land  purchased  by,  or  ceded  to, 
the  United  States  for  navy-yards,  forts  and  arsenals,  and  where 


DIGEST    OF    CASES    ON    DOMICILE.  479 

thoro  is  no  other  reservation  of  jurisdiction  to  the  state  than  that 
of  a  right  to  serve  civil  and  criminal  process  on  such  lands,  do 
not,  by  residing  on  such  lauds,  acquire  an}'  elective  franchise  as 
residents  of  a  city  or  town  within  the  jurisdiction  of  the  Common- 
wealth.     Opinion  of  Juf<tices,  1  Met.  580. 

2.     Particdlar  Cases. 

1.  Absence  from  the  state  for  a  particular  purpose,  but  with- 
out taking  a  permanent  residence  out  of  the  state,  was  held  not  a 
removal  within  the  meaning  of  the  statute  providing  for  proof  of 
deeds  where  the  subscribing  witness  had  removed  from  the  Com- 
monwealth.    Sachet's  Cise  (1804),  1  Mass.  58. 

2.  A  person  having  his  permanent  home  in  one  town,  and 
being  legally  qualiQed  to  vote  in  such  town,  is  not  disqualified  by 
a  temporary  absence  for  ten  weeks  in  another  town  to  perform 
work,  although  he  may  in  such  latter  town  have  been  admitted  to 
vote.     Lincoln  v.  Hapgood,  11  Mass.  350. 

3.  A  person  who  with  his  family  resided  in  Roxbury  was 
appointed,  Oct.  27,  1811,  clerk  of  the  courts  for  the  county  of 
Norfolk,  and  on  the  nest  day  went  to  Dedham,  the  county  seat, 
to  perform  his  duties  as  clerk,  leaving  his  famil}'  and  household 
effects  in  Roxbury  until  November  12,  when  he  removed  his 
family  to  Dedham.  In  the  mean  time,  he  had  boarded  in  a  pub- 
lic house  in  Dedham,  but  had  engaged  a  house  there  to  be  occu- 
pied from  November  12.  lie  spent  some  nights  during  the 
interval  in  Dedham  and  some  with  his  family  in  Roxburj',  having 
his  washing  and  other  d  )mestic  servicas  performed  in  his  family 
at  Roxbur3^  On  June  24,  1812,  he  ceased  to  be  clerk  of  the 
courts,  and  immediately  afterwards  opened  a  law  office  in  Rox- 
bury, leaving  his  family  in  Dedham,  and  frequently  going  to 
Roxbury  and  returning  to  Dedham  at  night.  It  was  held  that  he 
remained  an  inhabitant  of  Roxbury  until  he  removed  his  family 
to  Dedham,  Nov.  12,  1811,  and  therefore  had  not  been  an  inhabi- 
tant of  Dedham  for  6ne  j'ear  next  preceding  the  election  Nov.  2, 
1812,  and  was  not  entitled  to  vote  in  that  town.  Williams  v. 
TVhiting,  11  Mass.  424. 

4.  A  citizen  of  Vermont,  having  resided  in  a  town  in  Massa- 
chusetts ten  years  and  having  paid  taxes  in  it  for  more  than  five 
years,  although  he  left  his  wife  and  children  upon  his  farm  in 
Vermont,  occasional!}^  visiting  them  there,  but  not  considering  it 
his  home,  and  keeping  them  there  only  until  he  could  conveniently 
remove  them,  was  held  to  have  acquired  a  settlement  in  such  town 
in  Massachusetts,  within  the  meaning  of  the  pauper  laws.  Cam- 
bridge V.  Charlestown,  13  Mass.  501. 


480  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

5.  Where  a  person,  having  lived  many  j'ears  in  Walthara,  pur- 
chased and  furnished  a  house  in  Boston,  and  afterwards  with  his 
family  spent  his  summers  at  his  house  in  Waltham,  where  he  con- 
tinued to  pay  his  taxes,  and  his  winters  at  his  house  in  Boston, 
and  died  while  so  residing  in  Boston,  it  was  Jield  that  at  the  time 
of  death  he  was  an  inhabitant  of  Waltham,  and  that  his  will 
should  be  probated  under  the  statute,  in  the  county  of  Middlesex 
in  which  Waltham  is  situated.  Harvard  College  v.  Gore,  5  Pick. 
370. 

6.  Where  a  person  lived  in  a  town  nine  years  and  four  months, 
and  then  absconded  and  never  returned,  but  his  wife  remained 
there  eight  months  longer,  it  was  held  that  he  had  not  resided  in 
such  town  ten  years,  actually  or  constructively,  and  therefore  had 
not  gained  a  settlement  there  under  the  pauper  laws.  Athol  v. 
Watertoion,  7  Pick.  42. 

7.  A  testator  having  his  domicile  in  Petersham,  Massachusetts, 
and  being  the  owner  of  a  farm  there  upon  which  he  and  his  fam- 
ily resided,  became  financially  embarrassed  and  left  the  Common- 
weallh,  never  returning.  He  left  his  wife  and  daughter  on  the 
farm,  who  continued  to  live  there  with  his  son,  who  hired  the 
farm  of  him,  and  charged  to  him  their  board.  After  leaving  the 
Commonwealth  he  led  a  wandering  life,  but  spent  most  of  his 
time  at  Lunenburg,  Vermont,  his  object  being  to  take  care  of  his 
lands  there ;  he  never  kept  house  there,  but  boarded  with  a  person 
with  whom  he  had  resided  occasionally  for  several  years.  In  his 
journal  in  which  he  kept  a  memorandum  of  his  expenses  and  of 
his  journeys  from  place  to  place,  he  never  spoke  of  any  place  as 
his  home.  In  his  letters,  he  spoke  of  sustaining  actions  here  in 
the  federal  court,  "  as  he  has  removed  his  habitancy  from  Massa- 
chusetts," '*'  as  he  has  become  an  inhabitant  of  Vermont "  ;  and  in 
speaking  of  an  action  brought  against  him  in  Massachusetts,  he 
expresses  his  opinion  that  the  service  is  insufficient,  "as  Peters- 
ham is  not  his  last  and  usual  place  of  abode."  In  deeds  and  in 
his  will,  executed  in  New  Hampshire,  he  styled  himself  of  Peters- 
ham. His  will  was  proved  in  Massachusetts  originall}',  and  in 
the  probate  he  was  styled,  "  late  of  Potei'sham,"  as  he  was  abo 
in  the  subsequent  proceedings  in  the  probate  coui'ts  here  and  in 
Vermont ;  and  he  was  so  styled  in  deeds  made  b}'  the  executor. 
He  died  in  New  Hampshire  while  there  on  business.  It  was  held 
that  these  facts  did  not  prove  a  change  of  domicile.  Jenaison  v. 
Hapgood,  10  Pick.  77. 

8.  On  a  libel  for  divorce  by  the  wife,  it  appeared  that  the  hus- 
band's domicile  of  origin  was  in  Uxbridge,  in  the  county  of  Worces- 
ter ;  that  he  married  the  lib3llant  in  ISIO,  an  1  removed  with  her  to 


DIGEST   OF    CASES    ON    DOMICILE.  481 

Savannah,  Georgia,  where  he  engaged  in  business,  and  continued 
to  reside  with  his  wife  and  family  until  1821,  except  in  the  summer 
months  which  he  usually  spent  in  the  Northern  States  ;  that  in 
1821  he  broke  up  his  establishment  in  Savannah  and  returned  to  his 
father's  at  Uxbridge  ;  that  after  a  few  months'  residence  there,  he 
established  his  family  at  Providence,  Rhode  Island,  where  thej'  re- 
mained until  1825,  while  he  passed  the  summer  months  with  them 
each  year,  but  still  continued  to  carry  on  his  business  in  Savan- 
nah ;  that  in  1825  he  broke  up  housekeeping  in  Providence  and 
separated  from  his  wife,  and  from  that  time  continued  to  keep  up 
a  household  establishment  in  Uxbridge  on  the  fai-m  which  was  his 
father's  and  which  was  mortgaged  to  him  before  the  death  of  his 
father  in  1825  ;  that  he  resided  there  during  the  summer  months, 
employing  housekeepers  and  domestics  and  superintending  the  man- 
agement of  the  farm,  but  continuing  to  carry  on  business  the  rest  of 
the  year  in  Savannah  ;  and  that  the  wife  came  from  Providence  into 
the  county  of  Worcester  to  reside  in  September,  1830,  and  soon 
after  filed  her  libel.  It  was  held  that  her  husband  was  domiciled 
in  Savannah  from  1810  to  1821,  in  Providence  from  1821  to  1825, 
and  in  Uxbridge  since  that  date  ;  that  the  domicile  of  the  wife  fol- 
lowed that  of  her  husband  ;  and  that  the  court  sitting  for  the 
county  of  Worcester  had  jurisdiction  of  the  libel.  Greene  v. 
Greene,  11  Pick.  410.     And  see  Harleau  v.  Harteau^l^  Pick.  181. 

9.  Where  the  boundary  line  between  the  towns  of  Randolph  and 
North  Bridgewater  passed  through  a  dwelling-house  in  such  a  di- 

.  rection  as  that  that  portion  of  the  house  which  was  in  North  Bridge- 
water  was  sufficient  in  itself  to  constitute  a  habitation,  while  the 
portion  in  Randolph  was  insufficient  for  that  purpose,  it  was  held 
that  a  person  occup3'ing  such  house  acquired  a  domicile  in  North 
Bridgewater. 

It  seems,  that  if,  in  such  case,  the  line  had  divided  the  house 
more  equally,  the  fact  that  the  occupant  had  habituall}^  slept  in  that 
part  which  was  in  North  Bridgewater  would  be  a  preponderating 
circumstance  to  show  that  he  was  domiciled  in  that  town,  and  in 
the  absence  of  other  evidence,  would  be  decisive  of  the  question. 
Abington  v.  North  Bridgewater,  23  Pick.  170.  And  see  Chenery  v. 
Waltham,  8  Gush.  827. 

10.  A  citizen  of  Boston  who  had  been  at  school  in  the  city  of  Ed- 
inburgh when  a  bo}',  and  formed  a  predilection  for  that  place  as  a 
residence,  and  had  expressed  a  determination  to  reside  there,  if  he 
ever  should  have  the  means  of  so  doing,  removed  with  his  famil}' 
to  that  city  in  1836,  declaring  at  the  time  of  his  departure  that  he 
intended  to  reside  abroad,  and  that  if  he  should  return  to  the 
United  States,  he  should  not  live  in  Boston.     He  resided  in  Edin- 


482  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

burgh  and  the  vicinity  as  a  housekeeper,  taking  a  lease  of  an  estate 
for  a  term  of  ^-ears,  and  endeavored  to  engage  an  American  to 
enter  his  family  for  two  j-ears  as  instructor  of  his  children.  Before 
he  left  Boston  he  made  a  contract  for  the  sale  of  his  mansion  house 
and  furniture  there,  but  shortly  afterwards  procured  said  contract 
to  be  annulled  (assigning  as  his  reason  therefor,  that  in  case  of 
his  death  in  Europe,  his  wife  might  wish  to  return  to  Boston)  and 
let  his  house  and  furniture  to  a  tenant.  Held  that  he  had  changed 
his  domicile,  and  was  not  liable  to  taxation  as  an  inhabitant  of 
Boston,  in  1807.     Thorndlke  v.  Boston,  1  Met.  242. 

11.  A  native  inhabitant  of  Boston,  intending  to  reside  in  France 
with  his  family,  departed  for  that  country  in  June,  1836,  and  was 
followed  by  his  famil^^  about  three  months  afterwards.  His  dwell- 
ing-house and  furniture  were  leased  for  a  year,  and  he  hired  a  house 
for  a  year  in  Paris.  At  the  time  of  his  departure  he  intended  to 
return  and  resume  his  residence  in  Boston,  but  had  not  fixed  on 
any  time  for  his  return.  He  returned  in  about  sixteen  months,  and 
his  family,  in  about  nine  months  afterwards.  Held,  that  he  con- 
tinued to  be  an  inhabitant  of  Boston,  and  that  he  was  rightly  taxed 
there,  during  his  absence,  for  his  person  and  personal  property. 
Sears  v.  Boston,  1  Met.  250. 

12.  In  an  action  brought  by  one  town  against  another  for  the  sup- 
port of  a  pauper  and  his  family,  evidence  that  the  pauper  left  his 
former  home  and  came  to  the  defendant  town  with  the  intention  of 
removing  his  family  there  as  soon  as  practicable,  that  he  boarded 
and  worked  there  for  ten  years,  and  paid  taxes  there  five  years  of 
the  ten,  and  that  a  year  after  he  came,  his  family  removed  there 
and  continued  to  reside  with  him  for  the  rest  of  the  ten  3^ears,  when 
they  all  removed  to  the  plaintiff  town,  — is  sufficient  to  warrant  the 
jury  in  finding  that  the  pauper  had  gained  a  settlement  for  himself 
and  family  in  the  defendant  town.  Fitchburg  v.  Winchendon,  4 
Cush.  190. 

The  plaintiff,  who  was  a  native  of  Boston,  removed  to  New 
York  in  1828,  where  he  resided  until  1840,  at  which  time  he  returned 
to  Boston  and  remained  an  inmate  of  his  father's  family  until  1848, 
when  his  father  died.  He  then  took  rooms  at  a  hotel,  and  remained 
in  Boston  employed  as  executor  of  his  father's  will,  until  April  5, 
1849.  During  this  whole  period  he  frequently  expressed  an  inten- 
tion of  leaving  Boston  and  removing  to  Europe  or  New  York.  On 
April  5,  1849,  he  went  to  New  York,  intending  to  sail  for  Europe, 
and  either  to  fix  his  residence  in  Paris  or  return  to  New  York. 
He  did  not  sail  from  New  York  but  returned  to  Boston  on  May  7, 
and  sailed  from  that  city  June  6,  1849.  In  June,  1850,  he  returned 
and  established  his  residence  at  Newport.     Held  he  was  an  inhabi- 


DIGEST   OF   CASES    ON  DOMICILE.  483 

tant  of  Boston  on  May  1,  1849,  for  the  purpose  of  taxation.     Otis 
V.  Boston,  12  Cush.  44, 

13.  The  plaintiff  owned  dwelling-houses  in  Brookline,  in  Boston 
and  in  Beverly.  He  usually  resided  in  Brookline  about  seven  months 
of  each  year,  from  sometime  in  April  to  November  (except  a  few 
weeks  in  midsummer  spent  at  his  house  in  Beverly),  when  he  closed 
that  house  and  removed  to  Boston  until  the  following  April.  In 
April,  1850,  the  usual  preparations  were  made  to  close  the  house 
in  Boston  and  remove  to  Brookline,  but  from  illness  he  was  not 
able  to  go  personally  until  sometime  in  May.  On  April  28,  he  in- 
formed the  assessors  of  Brookline  of  the  cause  of  his  detention  in 
Boston,  and  that  he  desired  to  continue  a  citizen  of  Brookline 
and  taxable  there,  where  for  man3^  3'ears  he  had  been  taxed,  and 
had  exercised  all  municipal  rights  and  privileges.  Held,  that 
although  actuallj'  in  Boston  on  May  1,  1850,  he  was  not  rightfully 
taxed  there  upon, his  poll  and  personal  estate.  Cabot  y.  Boston,  12 
Cush.  52. 

14.  The  plaintiff  was  on  Jan.  1, 1853,  living  in  Boston  in  a  house 
owned  by  him.  But  for  at  least  twenty  years  previously  to  that 
time,  he  owned  a  house  in  Brookline,  where  he  spent  the  greater 
part  of  each  3'ear,  and  for  the  whole  of  that  period  he  had  been  con- 
stantly taxed  for  his  poll  and  personal  pi-operty  in  that  town,  and 
had  voted  and  exercised  all  his  rights  of  citizenship  there.  He 
moved  into  Boston  in  November,  1852,  but  with  an  intention  to 
remain  there  only  for  a  limited  period  ;  and  in  pursuance  of  that 
intention,  returned  in  the  month  of  April  ensuing  to  his  estate  in 
Brookline.  He  acted  himself,  and  was  treated  by  others  as  an  in- 
habitant of  that  town.  These  facts,  upon  perfectly  well  settled 
principles,  are  conclusive  as  to  the  place  of  his  domicile  and  in- 
habitancy. As  he  moved  into  Boston  onl^^  for  a  temporary  pur- 
pose, and  for  a  limited  period,  and  returned  to  Brookline  within  a 
few  months,  when  that  purpose  was  accomplished,  his  domicile  waa 
not  changed,  and  he  continued  all  the  time  to  be  an  inhabitant  of 
Brookline.  He  did  not,  therefore,  within  the  meaning  of  the  stat- 
ute, "  have  his  residence  in  the  city  of  Boston  on  the  first  day  of 
January,"  1853  ;  and  therefore  the  assessment  of  a  tax  upon  his  poll 
and  personal  property  there  for  that  3"ear  was  without  warrant  or 
authority  of  law.     Merrick,  J.,  Lee  v.  Boston,  2  Gray,  484,  493. 

15.  An  inhabitant  of  Providence,  being  out  of  health,  gave  up  busi- 
ness there  and  removed  to  Freetown  with  the  intention  of  remain- 
ing there  through  the  summer,  and  returning  to  Providence  in  the 
autumn  to  reside  and  do  business  there.  The  nest  autumn  his 
health  was  restored,  but  not  finding  satisfactory'  business  in  Prov- 
idence, he  remained  in  Freetown  until  the  following  March,  when 


484  MASSACHUSETTS    ELECTION    CASES 1853-1885. 

he  entered  into  business  elsewhere,  and  intended,  as  soon  as  he 
could  make  arrangements,  to  remove  to  Cumberland,  R.  I ,  to 
reside,  and  made  a  contract  for  the  removal  of  his  furniture  to  that 
place  as  soon  as  possible.  On  the  1st  da}^  of  Ma}-  he  put  it  on 
board  a  vessel,  and  a  few  daj's  after  personally  removed  to  Cumber- 
land. jffeZrt,  that,  being  actually  in  Freetown  May  1st,  and  having 
no  domicile  for  taxation  elsewhere,  ho  was  rightly  taxed  there  on 
said  1st  day  of  Ma}'.     Carnoe  v.  Freetown,  0  Gray,  357. 

16.  A  man  who  was  born  and  resided  during  his  childhood  in  Ver- 
mont, afterwards  lived  in  New  York  for  five  j'ears  next  preceding 
his  coming  of  age,  then  spent  some  months  at  his  former  home  in 
Vermont  in  search  of  emploj'ment,  and  afterwards  for  the  same 
purpose  went  to  St.  Louis,  and  obtained  employment  as  a  clerk, 
but  under  no  contract  for  any  fixed  length  of  time,  and  there 
became  engaged  to  marry  a  woman  residing  at  Roxbury,  and  came 
to  Massachusetts  in  March  to  fulfil  his  engagement,  without  intend- 
ing to  make  Roxbury  his  residence,  hired  a  house  in  Brookline  at 
a  rent  beginning  on  the  1st  day  of  April,  and  put  into  it  servants 
and  furniture,  and  his  own  and  his  betrothed  wife's  movable  prop- 
erty. They  were  married  at  Roxbury  on  the  9th  day  of  April,  and 
immediately  took  a  wedding  tour  with  an  intention  of  returning  to 
Roxbury,  and  on  the  2d  day  of  May  returned  to  the  house  in 
Brookline  and  resided  there.  Held  that  his  domicile  was  in  Brook, 
line  on  the  1st  day  of  May.      Williams  v.  Roxbury,  12  Gray,  21. 

17.  If  a  debtor  is  absent  from  and  resides  out  of  the  Common- 
wealth, retaining  no  dwelling-house  or  boarding-place  here,  though 
intending  to  return  at  some  future  indefinite  time,  he  has  no  dom- 
icile here,  and  the  time  of  bis  absence  is  to  be  deducted  from  the 
period  of  limitation  of  actions  against  him  under  the  statute  of 
limitations.     Sleeper  v.  Paige,  15  Gray,  349. 

18.  An  inhabitant  of  a  town  within  the  Commonwealth,  who 
before  the  first  day  of  May  has  left  the  Commonwealth  with  the 
intention  of  never  returning,  and  of  taking  up  his  abode  in  a  town 
in  another  state,  and  is  in  May  in  another  town  in  that  state,  is 
not  taxable  in  the  Commonwealth  on  May  1st,  although  he  has  not 
yet  acquired  a  domicile  in  the  other  state.  Briggs  v.  Rochester,  16 
Gray,  337.  This  case,  however,  at  least  as  regards  the  law  of  tax- 
ation, was  practically  overruled  by  Borland  v.  Boston,  132  Mass.  89. 

19.  The  plaintiff  lived  in  Boston,  and  afterwards  went  to  New 
Orleans  where  he  took  up  his  residence,  went  into  bQsiness,  became 
permanently  fixed  as  a  merchant,  and  has  had  no  other  place  of 
business  since.  He  married  at  the  South,  had  children,  came  to 
Boston  with  them  intending  to  return,  bought  a  house,  commenced 
housekeeping  and  sent  his  children  to  the  public  schools.     He  was 


DIGEST   or   CASES    ON   DOMICILE.  485 

iu  the  habit  of  coming  to  Boston  every  summer  and  remaining 
there  and  iu  the  vicinity  for  a  few  months.  He  left  his  family  in 
Boston,  for  the  benefit  of  the  children's  health,  for  two  5'ears, 
returned,  himself  to  his  business  in  New  Orleans,  always  styled 
himself  as  of  New  Orleans,  exercised  the  rights  and  performed 
the  duties  of  a  citizen  there,  and  in  no  other  place,  and  intended 
.  that  his  domicile  should  be  there.  Held,  that  the  court  ought  not  to 
set  aside  a  verdict,  which  found  upon  proof  of  the  above  facts,  f'  .'1, 
his  domicile  was  in  New  Orleans.     Cochrane  v.  Boston^  4  Al^    x77. 

20.  If  a  minor  leaves  the  domicile  of  his  origin  with  thv  jonsent 
of  his  guardian  and  lives  for  two  consecutive  vears  exclusivelv  in 
another  town,  considering  it  as  his  home,  with  no  definite  intent 
ou  the  part  of  his  guardian  to  cause  him  to  return,  he  acquires  a 
new  domicile  in  the  latter  place,  and  his  propert}'  is  properly  taxa- 
ble there.     Kirkland  v.  W/mtely,  4  All.  462. 

21.  The  plaintiff,  before  the  1st  day  of  May  had  determined 
to  abandon  his  domicile  in  Massachusetts,  and  to  take  up  his 
permanent  residence  in  Pennsylvania,  and  in  pursuance  of  that 
determination  before  the  1st  day  of  May,  he  actually  abandoned 
Massachusetts,  and  passed  into  Connecticut,  where  he  remained 
until  after  the  1st  day  of  May,  and  in  a  few  days  proceeded  to 
Pennsylvania,  where  he  afterwards  continued  to  reside.  Held 
that  he  was  not  taxable  as  an  inhabitant  here  on  the  1st  day  of 
May.  Colton  v.  Longmeadow,  12  All.  598.  See  on  the  authority 
of  this  case  Borland  v.  Boston,  132  Mass.  89. 

22.  Evidence  that  a  police  officer  of  the  town  of  Newton  some- 
times while  ou  duty  slept  in  the  police  station  there  ;  that  he  had 
a  room  in  Newton  where  he  sometimes  slept,  and  also  had  another 
room  there  at  the  house  of  his  brother  where  he  kept  his  clothes, 
and  that  he  claimed  to  be  an  inhabitant  of  Newton,  —  is  sufficient 
to  warrant  the  jury  iu  finding  that  he  was  an  inhabitant  of  that 
town,  although  he  worked  and  boarded  in  the  town  of  Watertown, 
and  was  a  police  officer  of  that  town.  Commonwealth  v.  Kelleher, 
115  Mass.  103. 

23.  In  an  action  against  the  city  of  Boston  to  recover  the 
amount  of  a  tax  assessed  ou  the  personal  property  of  the  plain- 
tiff on  May  1,  1876,  and  paid  uuder  protest,  there  was  evidence 
that  until  1869  the  plaintiff  had  lived  in  Boston  for  many  years 
with  his  family  in  a  house  owned  by  him  ;  that,  in  that  year,  being 
dissatisfied  with  the  amount  of  tax  thei-e  assessed  on  his  personal 
property,  he  gave  notice  to  the  assessors  that  he  had  removed  his 
residence  to  Lancaster,  where  at  the  time  he  owned  the  place  on 
which  he  was  born,  and  had  built  a  house,  in  which  he  had 
lived  with  his  family  from  June  to  October  or  November  in  each 


I 


486  MASSACHUSETTS   ELECTION    CASES  —  1S53-1885. 

year ;  that,  after  giving  the  notice  he  continued  to  live  there,  as 
before,  for  a  part  of  each  year,  voting  and  being  taxed  only  in 
that  town,  taking  part  in  town  meetings,  and  occasionally  serving 
on  town  committees.  Held  that  the  jury  would  be  warranted  in 
finding  that  the  plaintiff  was  not  legally  taxable  as  an  inhabitant 
in  Boston,  May  1,  1876,  although  he  removed  to  lessen  his  taxa- 
tion, and  on  the  day  the  tax  was  assessed  he  was  with  his  family 
living  in  his  house  in  Boston.  Held  aUo^  that  a  request  by  the 
defendant,  for  a  ruling  that  the  plaintiff  was  prima  fade  an  inhab- 
itant of  Boston,  and  there  resident,  if  he  and  his  family  were  on 
May  1st  living  in  a  house  of  his  own  in  the  same  way  in  which  he 
had  lived  during  three  years  in  which  he  admitted  that  he  had  been 
a  taxable  inhabitant  of  Boston,  —  was  properly  refused.  Held  also, 
that  if  a  person  has  a  dwelling-house  in  each  of  two  towns  in  the 
Commonwealth,  he  may  have  his  home  in  one  town  for  the  pur- 
pose of  taxation,  although  he  spends  the  greater  portion  of  the 
year  in  the  other,  and  is  there  on  the  1st  day  of  May.  Thayer  v. 
Boston,  124  Mass.  132. 

24.  In  an  action  against  the  city  of  Boston  to  recover  the 
amount  of  a  tax  assessed  on  the  personal  property  of  the  plaintiff, 
May  1,  1876,  and  paid  under  protest,  there  was  evidence  that  he 
acquired  a  domicile  in  Brookline  which  he  retained  until  1870 ; 
that  in  that  year  his  father,  with  whom  he  had  previously  lived, 
moved  to  Nahant  and  died  in  1874  ;  that  the  plaintiff  since  1870 
had  lived  for  some  time  each  summer  in  a  small  house  in  Nahant, 
with  his  brothers  and  sisters,  which  was  owned  by  him  and  them, 
after  his  father's  death  ;  that  in  1872,  his  wife  acquired  a  large 
estate  in  Boston  with  a  house  on  it ;  that  he  had  bought  much  land 
about  it  and  had  since  inhabited  it  exclusivel}'  except  when  at 
Nahant ;  that  in  this  house  were  all  his  furniture,  books  and 
pictures.  The  plaintiff  testified  that  when  he  left  Brookline  he 
intended  to  make  Nahant  his  home,  and  that  he  never  intended  to 
make  Boston  his  home.  Held,  that  there  was  evidence  to  warrant 
the  verdict  that  on  May  1,  1876,  he  was  a  resident  of  Boston  and 
there  taxable.      Wri'jht  v.  Boston,  126  Mass.  161. 

25.  The  plaintiff,  having  his  domicile  in  Boston,  left  that  city 
in  1876  with  his  family,  to  reside  in  Europe  for  an  indefinite  length 
of  time,  with  the  fixed  purpose  never  to  return  to  Boston,  as  a  place 
of  residence,  and  to  make  some  place  other  than  Boston  his  resi- 
dence when  he  should  return  ;  and  while  in  Europe  before  May  1, 
1877,  fixed  upon  a  place  of  residence  in  another  state,  but 
remained  in  Europe  until  1879.  Held  that  he  retained  his  domicile 
in  Boston  for  the  purposes  of  taxation  on  May  1,  1877.  Borland 
v.  Boston,  132  Mass.  89. 


DIGEST   OF   CASES    ON   DOMICILE.  487 

26.  Sailors.  Under  the  pauper  laws  of  the  Commonwealth,  a 
mariner  making  his  home  in  any  town  for  more  than  a  year,  acquired 
a  settlement  in  such  town,  although  following  the  business  of  his 
profession  therefrom.     Abington  v.  Boston,  4  Mass.  312. 

27.  If  a  seaman,  without  family  or  propert3%  sails  from  the 
place  of  his  nativity,  which  may  be  considered  his  domicile  of 
origin,  although  he  ma}'^  return  only  at  long  intervals,  or  even  be 
absent  many  years,  3"et  if  he  does  not  b}"^  some  actual  residence  or 
other  means  acquire  a  domicile  elsewhere,  he  retains  his  domicile 
of  origin.     Shaw,  C.  J.,  Thorndike  v.  Boston^  1  Met.  242,  246. 

28.  In  an  action  for  a  debt,  begun  twelve  years  after  the  debt 
accrued,  these  facts  appeared:  The  defendant,  a  sailor,  was  born 
and  had  his  domicile  in  Barnstable,  and  was  there  residing  with  his 
wife  and  children,  six  years  before  the  accruing  of  the  debt,  when 
he  went  alone  to  California,  remained  there  two  years,  then 
returned,  and  lived  in  Barnstable  during  the  other  four  3^ears, 
except  one  interval  of  fourteen  or  fifteen  months  when  he  was  on 
a  voyage.  The  family  was  then  broken  up  by  the  insanity  of  his 
wife,  who  was  removed  by  legal  commitment,  as  a  resident  of 
Barnstable,  to  a  hospital  in  another  place,  where  she  died  two  years 
afterwards,  while  he  was  at  sea ;  the  children  were  put  at  school  in 
a  different  part  of  Barnstable  ;  and  all  his  furniture  was  disposed 
of,  except  what  was  removed  to  a  bedroom  in  his  brother's  house 
in  Barnstable,  which  for  the  twelve  years  ensuing  was  always  kept 
for  his  use  when  he  was  in  the  town,  and  at  other  times  as  a  spare 
room,  and  was  used  by  him  when  there  except  when  he  stayed  in 
the  neighboring  house  of  his  father.  During  these  twelve  years,  he 
was  absent  from  Barnstable  most  of  the  time,  on  foreign  or  coast- 
wise voyages  (one  of  them  lasting  eighteen  months)  ;  —  in  New 
York,  in  Boston,  and  in  the  '•  oil  regions," —  but  he  returned  to  Barn- 
stable at  intervals  for  short  visits,  and  once  (about  the  middle  of 
the  period)  stayed  there  an  entire  year.  For  the  first  four  of  the 
twelve  3'ears,  except  six  months  when  he  was  on  a  vo^-age,  he  lived 
in  New  York  ;  and  during  the  last  two  of  the  four  he  visited  Barn- 
stable only  twice  a  year.  In  the  last  half  of  the  twelve  there  were 
three  successive  years,  the  first  of  which  he  passed  as  a  pilot  between 
New  York  and  Boston  ;  the  second  as  a  watchman  in  New  York  ; 
and  the  third  in  the  oil  regions.  During  the  sixteen  months 
immediately  preceding  the  end  of  the  twelve  3-ears  and  the  begin- 
ning of  the  action  he  was  "  in  Barnstable  and  in  Boston."  There 
was  no  evidence  that  he  had  any  house,  furniture  or  property  of  a 
permanent  character  elsewhere  than  in  Barnstable,  during  the  whole 
period  ;  when  his  wife  died,  her  remains  were  brought  to  Barnstable 
for  burial ;  and  he  testified  that  his  intention  always  was  to  retain 


\ 


488  MASSACHUSETTS    ELECTION   CASES — 1853-1885. 

Barnstable  as  his  home  and  to  return  to  it.  Bat  he  testified  also, 
that  when  he  went  to  New  York  and  to  the  oil  regions,  "  he  went 
looking  for  business,  and  intended  to  remain  as  long  as  he  had 
business  "  ;  and  that  he  paid  no  poll  tax  in  Barnstable,  and  voted 
but  once  there,  during  the  twelve  years  ;  though  he  testified  further 
that  neither  did  he  -pay  a  tax  or  vote  elsewhere.  Held  that  his 
domicile  was  in  Barnstable  for  such  a  length  of  time  after  the 
debt  accrued  that  the  statute  of  limitations  was  a  bar  to  the  action. 
Halletv.  Bassett,  100  Mass.  1G7. 

29.  A  master  mariner,  whose  domicile  of  origin  was  in  Brews- 
ter, left  Brewster  in  1867  and  went  to  sea  with  his  wife,  intending 
to  make  his  home  in  Orleans.  In  pursuance  of  this  intent,  he  in 
1868  sent  his  wife  to  Orleans,  where  she  boarded  at  her  father's 
house,  and  in  July,  1869,  h3  arrived  in  Orleans  himself.  Held  that 
in  May,  1869,  his  domicile  was  in  Orleans.  Bangs  v.  Brewster,  111 
Mass.  382. 

30.  Soldiers.  A  person  while  in  the  militarj^  service,  being  in 
all  matters  not  involved  in  his  military  duties  sui  juris,  may  be 
capable  of  changing  his  domicile  to  any  place  he  sees  fit ;  and 
where  a  person,  having  a  domicile  in  Lawrence,  enlisted  in  the  army 
in  1862,  and  in  1861  was  detailed  for  duty  in  Washington,  con- 
tinuing in  that  duty  until  1869,  and  then  was  appointed  clerk  in 
the  Treasury  Department  there,  which  office  he  continued  to  hold, 
actually  living  since  1864  in  Washington,  with  short  occasional 
absences,  not  paying  taxes  or  voting  in  Lawrence  after  1862,  it  was 
held  that  the  evidence  was  properly  submitted  to  the  jur}^  on  the 
question  whether  he  had  changed  his  domicile  to  Washington,  and 
their  finding  that  he  had  so  changed  his  domicile  will  not  be  set 
aside  by  the  court.     Mooar  v.  Harvey,  128  Mass.  219. 

31.  Studen's.  A  student  at  a  college  does  not  change  his 
domicile  by  his  occasional  residence  at  the  college  for  the  pur- 
pose of  study.     Granhy  v.  Amherst,  7  Mass.  1. 

32.  But  where  the  student,  being  of  age,  and  having  become 
emancipated  from  his  father's  family,  is  residing  at  the  college  or 
seminary  for  the  purpose  of  study,  and  has  left  his  father's  home, 
he  may  become  a  resident  of  such  place,  and  so  qualified  to  vote 
there,  although  it  may  not  be  his  expectation  to  remain  there  for- 
ever.    Pu'nam  v.  Johnson,  10  Mass.  488. 

33.  The  mere  facts  that  a  student,  who  has  a  domicile  in  one 
town,  resides  at  a  public  institution  in  another  town  for  the  sole 
purpose  of  obtaining  an  education,  and  that  he  has  his  means  of 
support  from  another  place,  do  not  constitute  a  test  of  his  right  to 
vote,  and  his  liability  to  be  taxed  in  the  latter  town.  He  obtains 
this  right  and  incurs  this  liability  only  by  a  change  of  domicile ; 


DIGEST   OF   CASES   ON   DOMICILE.  489 

and  the  question  whether  he  has  changed  his  domicile  is  to  be 
decided  b}-  all  the  circumstances  of  the  case.  Opinion  of  Justices, 
5  Met.  587. 

di.  Laborers.  A  person  legall}^  capable  of  choosing  or  chang- 
ing his  domicile,  who  abandons  his  home,  and  thenceforth  wanders 
from  town  to  town,  working  as  a  day  laborer,  "  with  no  purpose  in 
view,  and  wilh  no  opinions,  desires,  or  intentions,  in  relation  to 
residence,  except  to  have  a  home  wherever  he  works,"  ceases  to 
have  a  continuing  domicile,  for  the  purpose  of  acquiring  a  settle- 
ment in  the  town  where  the  home  is  which  he  so  abandons.  In 
such  case  he  had  in  each  successive  town  where  he  lived  as  a  lab- 
orer, a  home  and  domicile  so  long  as  he  remained  there.  The  case 
is  one  where  a  person  has  abandoned  his  former  d^velling  place, 
either  with  no  intention  of  returning,  or  at  the  most  with  such  vague, 
indefinite  and  remote  purposes  in  this  respect  that  the}^  would  not 
prevent  him  from  readily  acquiring  a  new  domicile  wherever  he 
might  go.  The  person  was  a  day  laborer  without  family,  separated 
by  judicial  decree  from  his  wife.  Such  a  man,  so  situated,  when  he 
is  laboring  in  one  town  with  no  other  intention  as  to  residence, 
except  to  have  a  home  wherever  he  works,  may  well  be  deemed  to 
live  there  with  the  purpose  of  remaining  for  an  indefinite  period  of 
time,  and  thus  to  have  there  all  the  home  he  has  anywhere,  as 
much  of  a  domicile  as  such  a  wanderer  can  have.  Wilbraham  v. 
Lndhw,  99  Mass.  587. 

35.  A  person,  however,  who  was  an  inhabitant  of  New  Jersey, 
and  came  into  Massachusetts  with  his  wife  to  seek  employment, 
intending  if  he  found  it  to  reside  here  permanently,  and  not  finding 
it,  returned  in  six  weeks  to  New  Jersey,  leaving  his  wife  here 
because  he  had  no  means  to  paj^  her  travelling  expenses  and  main- 
tain her,  was  held  not  to  have  acquired  a  domicile  in  Massachu- 
setts.    Ross  V.  Moss,  103  Mass.  575. 

3.     Evidence  on  Issue  of  Inhabitancy  or  Domicile. 

Eoidence  of  acts.  After  proof  of  a  man's  declaration  of  his  in- 
tention to  leave  a  town,  evidence  is  competent,  upon  the  question 
of  his  domicile,  to  show  that  he  was  not  in  such  town  afterwards, 
except  occasionally  and  for  short  visits.  Wilson  v.  Terry,  11 
All.  206. 

Same.  Upon  an  issue  whether  the  plaintiff  had  removed  his  res- 
idence from  Hatfield  to  Northampton  in  good  faith,  so  as  to  be  no 
longer  taxable  in  the  former  place  ;  the  fact  that  he  was  not  taxed 
in  Northampton,  and  all  his  acts  to  prevent  a  disclosure  or  discov- 
ery of  his  residence  there  by  the  assessors  of  that  town, —  are  admis- 


490  MASSACHUSETTS   ELECTION   CASES  —  ISSS-ISSS. 

sible,  as  bearing  upon  the  good  faith  of  the  plaintiff  in  remov- 
ing from  Hatfield  to  that  town.  Draper  v.  Hatfield,  124 
Mass.  53. 

Same.  On  an  issue  regarding  the  plaintiff's  domicile,  it  is  com- 
petent for  him  to  show  au}^  acts  of  habitancy  in  the  place  in  which 
he  claims  a  residence,  such  as  residence  in  that  place,  paying  taxes, 
voting,  attending  town  meetings  and  taking  part  in  the  discussions. 
But  a  private  conversation  or  discussion  as  to  town  affairs  is  not 
an  act  of  habitancy,  and,  like  any  other  declaration  not  accompa- 
nying an  act  which  may  be  given  in  evidence,  is  not  admissible  in 
his  favor.      Weld  v.  Boston,  126  Mass.  166. 

Act  of  Town  recognizing  person  as  a  Resident.  In  an  action  by 
one  town  against  another  to  recover  expenses  incurred  in  the  sup- 
port of  a  pauper,  it  was  held  that  a  notification  addressed  to  the 
pauper  by  an  inhabitant  of  a  third  town,  warning  him  to  attend  a 
district  school  meeting  therein,  was  competent  for  the  purpose  o^ 
proving  that  the  pauper  resided  at  that  time  in  such  third  town,  it 
being  testified  by  such  inhabitant  that  he  delivered  the  notification 
to  the  pauper.  Tbe  proof  was  of  an  act  done,  recognizing  the 
pauper  as  an  inhabitant,  and  as  such,  was  competent  proof,  among 
other  facts,  upon  the  point  of  inhabitancy.  So  the  fact  that  one's 
name  has  been  placed  on  the  list  of  voters,  has  been  admitted  for 
this  purpose,  although  it  is  the  act  of  other  persons.  The  evi- 
dence in  question  is  similar ;  it  is  an  act  of  the  officers  of  the 
town,  recognizhig  the  individual  as  an  inhabitant,  and  acting 
towards  him  and  with  him  as  such.  The  weight  of  such  circum- 
stance would,  of  course,  be  for  the  jury,  and  if  standing  alone  and 
unconnected  with  other  circumstances,  would  probably  be  consid- 
ered as  very  slight.      We-it  BoyUton  v.  Sterling,  17  Pick.  126. 

Same.  Taxing  jyer son  in  To\on.  But  the  fact  that  a  person  was 
taxed  in  the  town  to  which  he  has  removed,  in  the  absence  of 
proof  that  it  was  done  at  his  request,  is  not  competent  evidence 
to  show  that  he  did  not  continue  to  be  taxable  as  an  inhabitant  iu 
the  town  of  his  former  residence.  Such  evidence  would  have 
no  more  legal  tendency  to  prove  that  he  was  not  taxable  in  the 
town  of  his  former  residence,  than  the  mere  fact  that  he  was 
taxed  in  such  town  would  have  to  prove  that  he  was  not  taxable 
in  the  town  to  which  he  claimed  to  have  removed.  Mead  v. 
hoxhorough,  11  Cush.  362. 

Same.  Hiring  out  Pauper.  Town  records  of  votes  to  hire  out 
a  person  and  take  his  wages  for  support  of  his  family,  and  "to 
vendue  the  poor,"  followed  by  the  record  of  the  bidding  off  of  his 
children,  are  admissions  that  such  person  had  his  settlement  in  the 


DIGEST   OF   CASES   ON  DOMICILE.  491 

town,  which  are  binding  upon  the  town,  in  an  action  involving 
such  person's  settlement.  West  Bridgewater  v.  Wareham,  138 
Mass.  305. 

Same.  Putting  name  on  Voting-List.  Evidence  that  the  select- 
men of  a  town  decided  that  a  person  taxed  there  was  an  inhabi- 
tant, and  put  his  name  upon  the  voting-list,  is  not  admissible  for  the 
purpose  of  showing  that  his  domicile  was  in  that  town,  without 
showing  that  they  did  it  at  his  request.     Fisk  v.  Chester,  8  Gray,  506. 

Same.  So  a  voting-list  of  a  town,  without  evidence  that  a 
person's  name  was  placed  thereon  at  his  request,  and  a  tax  list 
with  a  memorandum  of  "  paid"  against  his  name,  are  inadmissible 
in  his  favor  to  show  that  his  domicile  was  in  that  town.  Sewall 
V.  Seioall,  122  Mass.  156. 

Holding  of  Town  Office  in  Town  competent  Evidence  on  question 
of  Residence.  It  was  competent  for  the  plaintiff,  with  a  view  to 
show  that  the  purpose  he  had  formed  of  abandoning  his  former 
domicile  had  been  carried  into  eifect,  to  prove  that  he  was  still 
residing  in  the  place  to  which  he  claimed  to  have  removed  his 
residence,  and  to  exclude  any  inference  that  he  had  gone  there  for 
a  temporary  object,  and  with  the  intent  to  return  after  that  object 
should  have  been  attained.  To  this  end  he  might  show  that  he 
was  a  highway  surveyor  in  the  latter  town,  or  had  engaged  in  any 
pursuit  or  calling  indicating  the  design  and  purpose  of  making 
such  town  a  place  .of  permanent  residence.  Cole  v.  Cheshire.,  1 
Gray,  441. 

Mere  intent  insufficient  to  prove  Residence.  Mere  bald  intent, 
unaided  by  other  proof,  will  not  establish  domicile.  The  factum 
and  animus  must  concur  in  order  to  establish  a  domicile.  The 
latter  may  be  inferred  from  proof  of  the  former.  But  evidence  of 
a  mere  intent  cannot  establish  the  fact  of  domicile.  Holmes  v. 
Greene,  7  Gray,  299. 

Intent  a  Question  of  Fact.  And  upon  the  issue  of  a  change  of 
domicile,  the  question  of  the  person's  intent,  when  his  testimony 
is  contradicted  by  other  evidence,  is  one  of  fact  for  the  jury. 
Mooar  v.  Harvey,  128  Mass.  219. 

Declaration  of  Intention.  Declarations  of  a  person,  which  can 
be  fairly  construed  as  expressive  of  his  intention  in  leaving  a  town, 
or  coming  to  another,  or  of  his  purpose  to  regard  one  or  the  other 
as  his  fixed  place  of  residence,  if  such  declarations  accompany  an 
act  which  they  explain  or  qualifj-,  are  competent  evidence  in  an 
issue  of  such  person's  domicile.     Monson  v.  Palmer,  8  All.  551. 


492  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

Same.  The  rule  is  that  declarations  which  accompany  and  give 
character  to  an  act  which  is  itself  competent  evidence,  are  admissi- 
ble on  the  ground  that  they  are  parts  of  the  act  or  res  gestoe. 
But  declarations  which  do  not  accompany  the  act  of  removal,  even 
if  they  are  statements  of  his  future  intentions  as  to  his  residence, 
are  inadmissible.     Morton,  J.,  Brookfield  v.  Wa'rren,  128  Mass.  287. 

Same.  A  party  to  a  suit  involving  the  question  of  his  domicile, 
at  a  particular  time,  may  testify  to  the  intent  with  which  he 
removed  from  one  town  to  another  shortlj^  before,  and  returned 
soon  after  that  time.     Fisk  v.  Chester,  8  Gra}',  506. 

Same.  Upon  the  issue  whether  the  plaintiff  had  removed  from 
a  town,  with  the  intention  of  residing  in  another  town,  his  declara- 
tions regarding  his  intention  to  reside  in  such  other  town,  made  in 
a  negotiation  for  a  place  of  residence  or  boarding  place,  are  com- 
petent evidence.  This  negotiation,  with  the  declaration  of  purpose 
and  intent,  which  not  so  much  accompanied,  as  made  part  of  it, 
was  a  fact  competent  to  be  proved.  AYhether  the  negotiation  was 
successful,  whether  it  ripened  into  a  contract  or  not,  might  affect 
the  weight,  but  not  the  competency  of  the  evidence.  Such  decla- 
rations are,  within  the  strictest  rule,  part  of  the  res  ges'oi,  qualifj'-- 
ing  and  giving  character  to  the  principal  thing  done.  Cole  v. 
Cheshire,  1  Gray,  441. 

Same.  On  an  issue  whether  a  person  who  has  left  the  state 
has  changed  his  residence,  he  may  testify  as  to  his  intent,  and  his 
declaration  of  that  intent,  on  leaving  the  state.  Reeder  v.  IIol- 
(iomb,  105  Mass.  93. 

Savie.  But  declarations  as  to  his  intention,  made  after  the 
removal,  not  being  part  of  the  res  gestm  are  inadmissible.  If 
made  at  the  same  time  with  the  act,  they  may  be  considered  as  a 
part  of  the  res  gestm,  and  so  admissible.  But  declarations,  not  made 
by  a  party  while  doing  any  act,  being  merely  a  recital  of  past  tran- 
sactions and  past  purposes,  are  not  admissible.  They  are  not 
explanatory  of  an  act  about  to  be  done,  nor  made  in  reference  to 
any  future  action  ;  they  are  merely  declarations  in  relation  to  a 
past  transaction.     Salem  v.  Lynn,  13  Met.  544. 

Same.  Upon  an  issue  whether  a  person  has  removed  his  resi- 
dence before  the  1st  day  of  May;  evidence  of  his  declarations, 
made  before  the  alleged  removal,  of  his  intention  to  remove  and 
make  his  home  elsewhere,  are  admissible  as  part  of  the  res  gestce. 
They  were  made  in  the  ordinary  course  of  business,  and  in  relation 
to  his  removal ;  and  they  were  made  to  the  owner  of  the  house  in 
which  he  was  jit  the  time  residing.  His  giving  notice  of  his  in- 
tended removal  is  to  be  considered  an  act,  which  he  might  prove  in 
any  case  in  which  it  became  material ;  and  if  so,  all  that  he  said 


DIGEST   OF   CASES   ON   DOMICILE.  493 

explanatoiy  of  his  intention  in  relation  to  his  removal  is  admissi- 
ble in  evicleneo.     Kilbourn  v.  Bennett,  3  Met.  199. 

Same.  In  an  action  to  try  the  question  whether  the  plaintiff, 
who  had  left  the  country"  with  his  family,  was  liable  afterwards  to 
be  taxed  as  an  inhabitant  of  the  place  of  his  former  residence,  a 
letter  from  him  to  his  agent  in  that  place,  expressing  his  intention 
to  reside  abroad  permanentl}'  is  admissible  in  evidence,  if  written 
before  he  knew  that  a  tax  had  been  assessed  upon  him,  though 
written  after  the  assessment.  Otherwise,  it  seems,  if  such  letter 
was  written  after  he  knew  that  he  was  taxed.  Thorndike  v.  Bos- 
ton, 1  Met.  242. 

Same.  A  man's  declarations  as  to  the  place  of  his  residence,  and 
his  designation  thereof  in  his  will,  are  competent  evidence  after  his 
death,  upon  the  question  of  his  domicile  at  a  time  shortly  after  the 
making  of  the  declarations  and  of  the  will.  Wilso7i  v.  Terry,  9  All. 
214  ;    Ward  v.  Oxford,  8  Pick.  47G  ;  Sahm  v.  Lynn,  13  Met.  545. 

Same.  In  an  action  against  the  selectmen  of  a  town  for  refusing 
to  put  the  plaintiff's  name  upon  the  list  of  voters,  and  rejecting  his 
vote,  the  plaintiff  may  prove  his  own  statements  relating  to  his  resi- 
dence, made  to  the  selectmen  before  offering  his  vote,  not  under  oath, 
fur  the  purpose  of  furnishing  to  them,  evidence  of  his  having  the 
legal  qualifications  of  a  voter  ;  and  he  may  testify  to  his  own  inten- 
tion in  leaving  the  town  for  a  prolonged  absence,  previousl}'  to  the 
time  of  the  acts  complained  of.  Lombard  v.  Oliver,  7  All.  155, 
ante,  p.  425. 

Declarations  made  in  party's  favor.  On  the  issue  whether  a  party 
to  a  suit  had  his  domicile  in  a  certain  city  on  the  1st  day  of  May, 
his  declarations  as  to  his  residence  in  a  letter  b}'  him  to  the  asses- 
sors of  the  city,  in  repl}^  to  a  circular  sent  to  him  by  them  ;  deeds 
in  which  he  was  grantor,  descinbing  him  as  of  another  place,  (one 
of  which  was  to  the  city  as  grantee)  ;  his  will,  in  which  he  was  de- 
scribed as  in  the  deeds  ;  and  the  will  of  his  father,  in  which  he  was 
so  described,  are  all  inadmissible  in  his  favor.  Wright  v.  Boston, 
126  Mass.  161  ;    Weld  v.  Boston,  lb.  1G6. 

Declarations  admissible  against  him.  But  deeds  to  such  person 
as  grantee,  describing  him  as  resident  in  the  defendant  city,  are  ad- 
missible against  him.  Ilis  acceptance  of  such  deeds  without  ob- 
jection was  an  implied  admission  of  the  correctness  of  the  recitals. 
Though  of  little  weight,  the  evidence  was  competent.  Weld  v. 
Boston,  126  Mass.  166. 

Declarations  in  Deeds  and  Wills.  —  Upon  the  question  whether 
a  pauper  had  derived  a  settlement  in  Oxford  from  his  grandfather 


494  MASSACHUSETTS   ELECTION  CASES  —  1853-1885. 

through  his  father,  it  was  held  that  copies  of  a  deed  executed  by 
the  grandfather  in  1754,  in  which  he  was  described  as  being  of 
Oxford,  and  of  his  last  w'ill,  made  in  1758,  in  which  he  was  de- 
scribed as  "now  resident  in  Oxford,"  were  admissible  evidence 
to  prove  that  the  grandfather  gained  a  settlement  in  Oxford  under 
the  Provincial  Statutes.      Ward  v.  Oxford,  8  Pick.  476  (1829). 

Held  also,  that  evidence  proving  that  the  grandfather,  for  a 
long  time  before  1754,  had  a  settlement  in  the  town  of  Sutton, 
and  that  afterwards  for  years  previous  to  1784,  the  father  of  the 
pauper  was  supported  as  a  pauper  by  Sutton,  was  admissible  to 
rebut  the  presumption  arising  from  the  description  of  the  grand- 
father in  the  deed  and  will.     Ih. 

Statements  in  Deeds  and  Town  Records.  —  In  an  indenture  of 
partition  of  lands  in  1744,  among  the  heirs  of  one  deceased  in 
1742,  a  description  of  one  parcel  as  "fifty-nine  acres  of  laud 
lying  in  Scituate,  being  part  of  the  homestead  of  said  deceased," 
is  no  evidence  of  his  having  had  a  dwelling  in  Scituate  in  1G95. 
Hingham  v.  South  Scituate,  7  Gray,  229. 

Same.  —  Grants  of  land  are  admissible  in  evidence  as  circum- 
stances tending  to  show  that  the  grantee  at  their  respective  dates, 
dwelt  in  that  part  of  the  town  in  which  the  land  was.     lb. 

Same.  —  A  description  in  a  town  record  of  land  laid  out  in 
1G96,  as  "  adjoining  to  the  fence  of  Curtis'  home  pasture,"  is 
admissible,  against  a  town  subsequently  created  out  of  part  of 
the  town,  to  prove  that  Curtis  then  dwelt  in  that  part  of  the  town 
in  which  the  land  was.     lb. 

Same.  Tax-list.— A  tax-list,  made  by  the  assessors  of  the 
town,  merely  for  the  assessment  and  collection  of  a  tax,  con- 
taining the  name  of  the  person  whose  domicile  is  in  question,  is 
not  competent  evidence,  in  the  absence  of  proof  that  his  name 
was  placed  upon  it  at  his  request.  Sewall  v.  Seivall,  122  Mass. 
156  ;  Mead  v.  Boxborongh,  11  Cush.  362  ;  Commonwealth  v.  Heff- 
ron,  102  Mass.  148. 

Same.  Record  of  Marriage.  —  On  an  issue  between  two  towns 
whether  a  pauper's  husband  had  resided  in  the  defendant  town 
from  1837  to  1845,  a  certified  copy  from  the  town  clerk's  records 
of  another  town  purporting  to  be  the  copy  of  the  marriage  certi- 
ficate made  in  April,  1837,  certifying  that  the  magistrate  joined 
the  pauper's  husband  and  a  former  wife  in  marriage.  May  24, 
1836,  and  describing  the  husband  as  of  the  defendant  town,  was 
admitted  as  prima  facie  evidence  that  the  husband's  residence 
was  in  that  town  on  the  day  named,  but  not  of  his  residence  there 
before  that  date.     Shutesbury  v.  Hadley,  133  Mass.  242. 


SUPPLEMENT   III. 


MESSAGE  OF  GOVERNOR  ANDREW  TO  THE  SENATE,  APRIL  7, 
1862,  VETOING  THE  ACT  OF  1862,  ENTITLED  "  AN  ACT  TO 
DIVIDE  THE  COMMONWEALTH  INTO  DISTRICTS  FOR  THE 
CHOICE  OF  REPRESENTATIVES  IN  THE  CONGRESS  OF  THE 
UNITED  STATES,"  REQUIRING  THE  PEOPLE  OF  EACH  DIS- 
TRICT TO  LIMIT  THEIR  CHOICE  OF  SUCH  REPRESENTATIVE 
TO  AN  INHABITANT  OF  THE  DISTRICT. 

Representative  in  Congress.  Qualifications  fixed  by  National  Constitution.  The 
qualifications  of  representatives  in  Congress  are  prescribed  by  the  Constitution  of 
the  United  States,  and  no  state  can  add  to,  or  take  from,  the  qualifications  so  pre- 
scribed. 

Same.  Residence  in  District  not  required.  An  act  of  the  legislature,  requiring 
the  people  of  each  congressional  district  to  confine  their  choice  of  representative  in 
Congress  to  an  inhabitant  of  the  district,  is  unconstitutional,  as  no  such  restriction 
is  imposed  by  the  Constitution  of  the  United  States,  in  prescribing  the  qualifications 
of  representatives. 

The  act  of  1862,  afterwards  enacted  as  chapter  226  of  the  acts 
of  that  year,  divided  the  Commonwealth  into  districts  for  the 
election  of  representatives  in  Congress,  and  provided  (section  1)  ; 
"  For  the  purpose  of  electing  representatives  in  the  thirty-eighth 
Congress  of  the  United  States,  and  in  each  subsequent  congress, 
until  othertvise  provided  by  law,  the  Commonwealth  shall  be 
divided  into  ten  districts,  each  of  which  shall  elect  one  represen- 
tative, being  an  inhabitant  of  the  same,  in  the  manner  now  pro- 
vided by  law." 

When  this  bill  was  laid  before  the  governor,  for  his  revisal,  he 
returned  it  to  the  senate,  where  it  originated,  with  his  objections 
thereto  expressed  in  the  following  message  :  — 

A  clause  contained  in  the  bill  which  originated  in  the  senate 
and  is  entitled,  '■^  An  Act  to  divide  the  Commonwealth  into  dis- 
tricts for  the  choice  of  representatives  in  the  Congress  of  the  United 
States"  —  requiring  the  people  Qf  each  congressional  district  to 
limit  their  choice  for  representative  in  Congress,  to  an  inhabitant 
of  the  district,  —  compels  me,  with  much  reluctance,  to  return 
the  bill  to  the  honorable  senate,  for  its  revision.  And  in  order  to 
present  with  clearness  and  precision  the  reasons  which  forbid  the 
executive  signature  to  the  bill,  I  beg  to  call  attention,  at  the  out- 

[495] 


496  MASSACHUSETTS   ELECTION   CASES 1853-1885. 

set,  to  all  the  language  of  the  Constitution  of  the  United  States 
which  bears  upon  the  subject. 

Constitution  of  the  United  States,  Article  1,  Section  2. 

"  2.  No  person  shall  be  a  representative  who  shall  not  have  attained 
to  the  age  of  twenty-five  years,  and  been  seven  yeai-s  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that 
state  in  which  he  shall  be  chosen." 

Constitution  of  the  United  States,  Article  1,  Section  4. 

"  1,  The  times,  places,  and  manner  of  holding  elections  for  senators 
and  representatives,  shall  be  prescribed  in  each  state,  by  the  legislature 
thereof;  Init  the  Congress  may,  at  any  time,  by  law,  make  or  alter  such 
regulations,  except  as  to  the  places  of  choosing  senators." 

Congress,  in  the  exercise  of  its  power  created  by  the  4th  sec- 
tion of  the  1st  article  above  cited,  to  "  make  or  alter  such  regu- 
lations "  concerning  "the  time,  places,  and  manner  of  holding 
elections  for  *  *  *  representatives "  (which  were  originally  left 
to  "be  prescribed  in  each  state,  by  the  legislature  thereof"), 
passed,  in  the  year  1842,  an  act  in  which  the  states  are  required 
to  be  districted  for  the  choice  of  representatives  in  Congress. 

"  In  every  case  where  a  state  is  entitled  to  more  than  one  i-epresenta- 
tive,  the  number  to  which  each  state  shall  be  entitled,  under  this  ap- 
portionment, shall  be  elected  by  districts  composed  of  contiguous 
territory,  equal  in  number  to  the  number  of  representatives  to  which 
said  state  may  be  entitled,  no  one  district  electing  more  than  one  repre- 
sentative."    (Acts  cf  1842,  chapter  47,  section  2.) 

The  authority  under  which  the  legislature  of  this  Common- 
wealth  acts,  in  legislating  upon  the  subject  of  electing  represen- 
tatives in  Congress,  is  wholly  derived  from  the  clauses  of  the 
Constitution  of  the  United  States  before  cited,  and  from  this  act 
of  Congress  of  1842;  and  I  am  constrained  to  believe  that  no 
right  or  power  has  ever  been  granted  to  the  legislature  of  a  state 
to  limit  the  freedom  of  the  people  in  their  choice  of  representa- 
tives by  means  of  any  such  provision  as  that  contained  in  the  bill 
which  I  herewith  return.  I  am  convinced  that  this  freedom  is 
unlimited  and  irrestrainable,  save  by  the  Constitution  of  the 
United  States  itself. 

Guided  to  this  result  by  the  light  of  authorities  which  command 
universal  regard,  I  deem  it  more  respectful  to  allow  them  to 
speak  for  themselves,  by  the  adoption  of  their  own  language  so 
far  as  reasonable  limits  of  quotation  will  permit  me  to  present 
them. 


VETO   MESSAGE    OF   GOV.    AISTDEEW — 18C2.  407 

Mr.  Justice  Story,  in  his  Commentaries  on  the  Constitution  of 
the  Uiiit'jcl  States,  examined,  in  a  thorough  and  vigorous  discus- 
sion, the  question  "  Wliether  the  state  can  superadd  any  qiiaUJica- 
tions  to  those  prescribed  by  the  Constitution  of  the  United  States." 

Judge  Story  says  :  — 

• 

"  If  a  state  legislature  has  authority  to  pass  laws  to  this  effect,  they 
may  impose  any  other  qualifications  beyond  those  pi'ovided  by  the  Con- 
stitution, however  inconvenient,  restrictive,  or  even  mischievous  they 
may  be  to  the  intei-ests  of  the  union.  The  legislature  of  one  state  may 
require  that  none  but  a  Deist,  a  Catholic,  a  Protestant,  a  Calvinist,  or  a 
Uuiversalist,  shall  be  a  representative.  The  legislature  of  another  state 
may  require  that  none  shall  be  a  representative  but  a  planter,  a  farmer, 
a  mechanic,  or  a  manufacturer.  It  may  exclud3  merchants,  and  divines, 
and  physicians,  and  lawyers.  Anotlier  legislature  may  require  a  high 
moneyed  qualification,  a  freehold  of  great  value,  or  personal  estate  of 
great  amount.  Another  legislatui'c  may  require  that  the  party  shall 
have  been  born,  aud  always  lived  in  the  state  or  district ;  or  that  he  shall 
be  an  inhabitant  of  a  particular  town  or  city,  free  of  a  corporation,  or  an 
eldest  son.  In  short,  there  is  no  end  to  the  variety  of  qualifications, 
which,  vfithout  insisting  upon  extravagant  cases,  may  be  imagined.  A 
state  may  with  the  sole  object  of  dissolving  the  union,  create  qualifica- 
tions so  high  and  so  singular,  that  it  shall  become  impracticable  to  elect 
any  representative."     (Story  on  Const.,  Sect.  624.) 

"  It  would  seem  but  lair  reasoning  upon  the  plainest  principles  of  in- 
terpretation, that  when  the  Constitirtion  established  certain  qualifica- 
tions as  necessary  for  office,  it  meant  to  exclude  all  others  as  j>rerequi- 
sites.  From  the  very  nature  of  such  a  provision,  the  afiirmative  of  these 
qualiilcations  would  seem  to  imply  a  negative  of  all  others."  (Idem-, 
Scot.  G25.) 

The  power  attempted  to  be  exercised  by  means  of  the  clause  of 
this  bill  now  under  consideration,  has  sometimes  been  thought  to 
be  justified  by  that  article  of  amendment  of  the  Constitution  of  the 
United  States,  which  provides  that  "  the  powers  not  delegated  to 
the  United  States  by  the  Constitution,  nor  prohibited  by  it  to  the 
states,  are  reserved  to  the  states  respectively,  or  to  the  people." 

But  this  suggestion  is  disposed  of  by  Judge  Stoiy,  in  the  follow- 
ing conclusive  argument :  — • 

*  *  *  "  The  whole  of  this  reasoning  *  *  *  proceeds  upon  a  basis 
which  is  inapplicable  to  the  case.  In  the  first  place  no  powers  could  be 
reserved  to  the  states  except  those  which  existed  in  the  states  before  the 
Constitution  was  adopted.  The  amendment  does  not  profess,  and,  in- 
deed, did  not  intend  to  confer  on  the  states  any  new  powers,  but  merely 
to  reserve  to  them  what  were  not  conceded  to  the  government  of  the 
union.  Now,  it  may  properly  be  asked,  where  did  the  states  get  the  power 
to  appoint  representatives  in  the  national  government?     Was  it  a  power 


498  MASSACHUSETTS    ELECTION    CASES  —  1853-1885. 

that  existed  at  all,  before  the  Constitution  was  adopted?  If  derived 
from  the  Constitution,  must  it  not  be  derived  exactly  under  the  qualifi- 
cations established  by  the  Constitution,  and  none  others?  If  the  Con- 
s!i;ution  has  delegated  no  power  to  add  new  qualifications,  how  can  they 
ciaina  power  by  the  mere  adoption  of  that  instrument  which  they  did 
not  before  possess  ?  "     (Story  on  Constitution,  Sect.  626.) 

"  The  truth  is,  that  the  states  can  exercise  no  powers  whatsoever 
which  exclusively  springy  out  of  the  existence  of  the  national  g-overn- 
ment,  which  the  Constitution  does  not  delegate  to  thera.  They  have  .just 
as  much  right,  and  no  more,  to  prescribe  new  qualifications  for  a  repre- 
sentative, as  they  have  for  a  president.  Each  is  an  officer  of  the  union, 
deriving  his  powers  and  qualifications  from  the  Constitution,  and  neither 
created  by,  dependent  upon,  nor  controllable  by,  the  states.  It  is  no 
original  prerogative  of  state  power,  to  appoint  a  representative,  a  sena- 
tor, or  president,  for  the  union.  Those  officers  owe  their  existence 
and  functions  to  the  united  voice  of  the  whole,  not  a  portion  of  the  peo- 
ple Befoi-c  a  state  can  assert  the  right,  it  must  show  that  the  Consti- 
tution has  delegated  and  recognized  it.  No  state  can  say  that  it  has 
reserved  what  it  never  possessed."      (Idem,  Sect.  G27.) 

"  Besides,  independent  of  this,  there  is  another  fundamental  objection 
to  the  reasoning.  The  whole  scope  of  the  argument  is  to  show  that  the 
legislature  of  the  state  has  a  right  to  prescribe  new  qualifications.  Now 
if  the  state  in  its  political  capacity  had  it,  it  would  not  follow  that  the 
legislature  possessed  it.  That  must  depend  upon  the  powers  confided 
to  the  state  legislature  by  its  own  constitution.  A  state,  and  the  legis- 
lature of  a  state,  are  quite  diff"erent  political  beings.  Now  it  would  be 
very  desirable  to  know  in  which  part  of  any  state  constitution  this 
authority,  exclusively  of  a  national  character,  is  found  delegated  to  any 
state  legislature.  But  this  is  not  all.  The  araeudment  does  not  reserve 
the  powers  to  the  states  exclusivelv,  as  political  bodies;  for  the  lan- 
guage of  the  amendment  is.  that  the  powers  not  delegated,  etc ,  are 
reserved  to  the  states,  or  to  the  people.  To  justify,  then,  the  exercise  of 
the  power  by  a  state,  it  is  indispensable  to  show  that  it  has  not  been 
reserved  to  the  people  of  the  state.  The  people  of  the  state,  by  adopt- 
ing the  Constitution,  have  declared  what  their  will  is  as  to  the  qualifica- 
tions for  office.  And  here  the  maxim,  if  ever,  must  apply,  expressio 
unius  est  exclusio  allerius.  It  might  further  be  urged  that  the  Consti- 
tution, being  the  act  of  the  whole  people  of  the  United  States,  formed 
and  fashioned  according  to  their  own  views,  it  is  not  to  be  assumed  as 
the  basis  of  any  reasoning,  that  they  have  given  any  control  over  the 
functionaries  created  by  it,  to  any  state,  beyond  what  is  found  in  the 
text  of  the  instrument.  When  such  a  control  is  asserted,  it  is  matter 
of  proof,  not  of  assumption  ;  it  is  matter  to  be  established  as  of  right, 
and  not  to  be  exercised  by  usurpation  until  it  is  displaced.  The  burden 
of  proof  is  on  the  state,  and  not  on  the  government  of  the  union.  The 
affirmative  is  to  be  established  ;  the  negative  is  not  to  be  denied,  and  the 
denial  taken  for  a  concession."     {Idem,  Sect.  628.) 

"  In  legard  to  the  power  of  a  state  to  prescribe  the  qualification  of  in- 
habilaiicy  or  residence  in  a  district,  as  an  additional  qualification,  there 


VETO    MESSAGE    OF    GOV.    ANDREW — 1862.  499 

is  this  forcible  reason  for  denying  it,  that  it  is  undertaking  to  act  upon  the 
very  qualification  prescribed  by  the  Constitution  as  to  inhabitancy  in 
the  state,  and  abridging  its  operation.  It  is  precisely  the  same  exercise 
of  power  on  the  part  of  the  states  as  if  they  should  prescribe  that  a  rep- 
resentative should  be  forty  years  of  age,  and  a  citizen  for  ten  years. 
In  each  case  the  very  qualification  fixed  by  the  Constitution  is  com- 
pletely evaded,  and  indirectly  abolished."      {Idem,  Sect.  029.) 

The  subject  did  not  escape  the  notice,  also,  of  Chancellor  Kent, 
in  his  Commentaries  on  American  Law.  He  did  not,  however, 
indulge  in  any  extended  discussion,  but  in  a  single  allusion  em- 
phatically declares  his  own  opinion,  and  disposes  of  the  topic. 

"  The  question  whether  the  individual  states  can  superadd  to,  or  vary 
the  qualifications  prescribed  to  the  representative  by  the  Constitution 
of  the  United  States,  is  examined  in  Mr.  Justice  Story's  Commentaries 
on  the  Constitution.  But  the  objections  to  the  existence  of  any  such 
power  appear  to  me  to  be  too  palpable  and  weighty  to  admit  of  any 
discussion."     (1  Kent's  Cora.,  p.  229,  Note.) 

The  precise  question  we  are  considering  arose  in  Congress  in  the 
year  1807.  Under  the  clause  of  the  5th  section  of  the  1st  article 
of  the  Constitution,  which  provides  that  "  Each  house  shall  be  the 
judge  of  the  elections,  returns  and  qualifications  of  its  own  mem- 
bers," the  house  of  representatives  was  called  to  pass  upon  the 
validity  of  the  election  of  William  McCreery,  of  Maryland,  who 
had  been  returned  as  a  member,  although  wanting  in  the  qualifica- 
tion of  residence  or  inhabitaucj'  required  by  the  local  law  of  Mary- 
land. The  case  was  investigated  by  very  elaborate  discussions,  in 
long  debate ;  and  the  right  of  Mr.  McCreery  to  his  seat,  against 
the  contestant,  was  determined  by  a  vote  of  89  to  18. 

In  this  important  debate,  held  now  fifty-Qve  years  ago,  I  cannot 
forbear  to  mention  that  one  eminent  citizen  participated  as  a 
representative  from  Massachusetts,  who  still  remains  to  us,  an 
interested,  patriotic  and  patriarchal  spectator  of  public  affairs,  in 
which  for  more  than  half  a  century  he  bore  a  part  so  conspicuous. 
I  allude  to  Josiah  Quincy,  whose  venerable  age  and  illustrious 
character  entitle  the  opinions  he  expressed,  to  be  cited  with  the 
force  of  authority. 

He  insi-^ted  that  "  This  was  a  right  reserved  to  the  people  and 
not  to  the  states.  *  *  *  He  would  not  *  *  *  enter  into  any  in- 
quiry en  the  question  of  expediency,  because  according  to  his  view 
and  clear  conception  of  the  Constitution,  he  could  not  consider  an 
attempt  made  by  a  legislature  of  any  state  to  annex  qualifica- 
tions, in  any  other  light  than  as  a  direct  violation  of  the  rights  re- 
served  to  the  people."     (See  Clark  &  Hall,  Cong.  Elections,  p.  203.) 


500  MASSACHUSETTS   ELECTION   CASES  —  1853-1885. 

Tn  recapitulating  his  argument  Mr.  Quincy  contended  :  1.  That 
the  right  to  be  elected,  was  a  right  of  the  people  which  they  had 
reserved  to  themselves,  except  as  limited  b}'  the  Constitution.  2. 
Tbat  the}'  had  not  given  to  Congress  the  power  to  increase  the  num- 
ber of  qualifications,  because  it  came  within  neither  "  time," 
"place,"  nor  "manner."  3.  That  if  the  house  should  determine 
that  the  states  had  a  power  to  annex  these  additional  qualifica- 
tions, they  would  sanction  in  the  states  an  exercise  of  authority 
which  could  not  be  justified  by  the  Constitution  of  the  United 
States. 

In  the  3'ear  1856  the  question  arose  in  both  houses  of  Congress, 
whether  a  state  ma}'  by  its  own  Constitution  superadd  qualifica- 
tions for  membership  to  those  required  by  that  of  the  union  ;  and 
in  each  house,  on  full  discussion,  the  rights  of  the  sitting  mem- 
bers were  affirmed,  notwithstanding  that  such  members  were  in- 
eligible to  election  under  the  constitution  of  Illinois  where  they 
were  chosen.  The  cases  were  that  of  Judge  Trumbull,  elected  by 
the  legislature  of  Illinois  to  the  senate  of  the  United  States,  and 
chosen  also  b}'  the  people  of  one  of  the  districts  of  Illinois  to  a 
seat  in  the  other  branch  of  Congress, —  and  that  of  Judge  Mar- 
shall, elected  representative  by  the  people  of  another  Illinois  dis- 
trict. Judge  Trumbull  resigned  his  seat  as  a  member  of  the 
house,  preferring  to  assume  the  position  of  senator.  The  objec- 
tion was  urged  both  as  to  himself  and  Judge  Marshall,  that  they 
were  ineligible  b}'  reason  of  the  following  clause  in  the  constitu- 
tion of  Illinois,  viz. :  "  The  judges  rf  the  supreme  and  circuit 
courts  shall  not  be  eligible  to  any  other  office  of  public  trust  or 
profit,  in  this  state  or  the  United  States,  during  the  term  for 
which  they  were  elected,  nor  for  one  year  thereafter."  The  debate 
in  the  senate  was  led  by  Mr.  Crittenden  of  Kentucky,  who  oficrcd 
a  resolution  declaing  that  Mr.  Trumbull  was  entitled  to  his  seat. 
In  the  course  of  a  ver}'  clear  and  discriminating  speech  in  its  sup- 
port, Mr.  Crittenden  remarked  :  — 

"  It  is  now  supposed,  by  those  who  contend  that  Mr.  Trumbull  is 
not  entitled  to  his  seat,  that  it  is  competent  for  a  state,  by  its  constitu- 
tion, and  I  suppose  they  would  equally  contend,  by  any  law  which  the 
legislature  might  from  time  to  time  pass,  to  superadd  additional  qualifi- 
cations. The  Constitution  of  the  United  States,  they  say,  has  only  in  part 
regulated  the  subject,  and  therefore  it  is  no  interference  with  that  Con- 
stitution to  make  additional  regulations.  This,  I  think  it  will  be  plain 
to  all,  is  a  mere  sophism,  when  you  come  to  consider  it.  Ifit  wasa 
power  within  the  regulation  of,  and  proper  to  be  regulated  by  the  Con- 
stitution of  the  Unite:!  States,  and  if  that  Constitution  has  qualified  it, 
as  I  have  state'!,  prescribing   the   age,  prescribing  the  residence,  pre- 


VETO   MESSAGE    OF   GOV.    ANDREW 1862.  501 

scribing  the  citizenship,  was  there  anything  more  intended?  If  so, 
(he  franaers  of  the  Constitution  would  have  said  so.  The  very  enumer- 
ation of  these  qualifications  excludes  the  idea  that  they  intended  any 
other  qualifications.  That  is  the  plain  rule  of  ordinary  construction." 
(Cong.  Globe,  34th  Cong.,  Part  1,  p.  547  et  seq.) 

Even  such  an  extremist  in  the  doctrines  of  state  rights,  as  Mr. 
Mason  of  Virginia,  said  :  — 

"  I  do  not  see  how  it  is  possible  to  allow  to  the  state  legislatures 
(although  perhaps  I  might  have  been  better  satisfied  if  it  had  been 
allowed  to  them)  power  to  place  any  other  qualifications  or  disqualifi- 
cations than  those  imposed  by  the  Constitution,  without  changing  and 
impairing  the  grant  of  power  vested  by  the  Constitution  of  the  United 
States  in  the  legislature."     {Idem,  p.  579.) 

The  resolution  of  Mr.  Crittenden  was  adopted  in  the  senate, 
by  a  vote  of  35  to  8,  and  in  the  similar  case  of  contested  election 
in  the  house,  the  result  arrived  at  was  similar,  and  not  less 
decisive.  And  I  may  add  that  in  at  least  two  other  cases  involv- 
ing the  same  principle,  senators  of  the  United  States  have  held 
their  seats  without  challenge  or  objection. 

The  conclusion  to  which,  after  anxious  deliberation  and  research, 
my  own  mind  is  compelled,  is  that  the  clause  in  this  bill  attempt- 
ing to  confine  the  range  of  selection  for  a  representative  in 
Congress,  to  the  district  for  which  he  may  be  chosen,  would  be  a 
clear  usurpation  of  a  popular  right. 

Neither  Congress,  nor  any  state  legislature,  nor  any  other 
governmental  agency,  has  any  authority  to  control  the  people  in 
their  free  right  to  select  their  members  of  Congress,  restrained 
only  by  the  limitations  which  they  imposed  upon  themselves  in 
the  Federal  Constitution. 

The  legislature  in  laying  out  the  state  into  congressional  dis- 
tricts, acts  under  a  power  conferred  by  the  Federal  Constitution ; 
since  all  powers  relating  to  the  choice  of  officers  created  thereby, 
spring  from  that  instrument.  And  the  legislature^  can  have  no 
power  in  the  premises  which  the  people  have  not  by  the  terms  and 
meaning  of  the  Federal  Constitution,  conferred  upon  it.  The 
selectmen  of  the  smallest  town  in  the  Commonwealth,  in  issuing 
their  warrant  notifying  the  people  to  come  to  the  polls  and  give 
in  their  votes,  have  as  much  right  to  attempt  to  limit  them  in 
their  range  of  selection,  as  has  the  whole  government  of  the 
Commonwealth.  This  conclusion  seems  to  me  so  clear  that  I 
cannot  escape,  nor  evade  it ;  and  if  I  should  affix  my  official  sig- 
nature to  this  bill,  I  should  feel  myself  guilty,  with  my  present 


502  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

convictions,  of  seeking  to  usurp  an  ungranted  power,  and  to 
affect  a  guardianship  over  the  judgment  and  opinions  of  the 
people  of  the  Commonwealth.  Ours  are  representative  govern- 
ments, based  on  democratic  ideas,  their  powers  limited  by  written 
constitutions.  Each  of  these  elements  must  always  be  remem- 
bered, for  they  are  all  required  to  test  our  powers  of  government 
and  the  methods  of  administration.  And  what  can  be  a  more  sig- 
nificant offence  against  democratic  ideas  than  for  the  government 
to  assume  to  govern  and  guide  the  popular  choice,  especially  in 
the  exercise  of  that  most  sovereign  right,  the  elective  franchise, 
by  the  assumption  of  undelegated  power?  This  is  a  case,  more- 
over, in  which  all  the  doubts,  if  there  are  any,  must  weigh  against 
the  power  of  the  legislature,  not  in  its  favor.  There  are  cases 
in  which  the  doubts  are  to  weigh  in  favor  of  a  power.  For 
example,  for  the  purpose  of  redressing  individual  wrongs  and 
grievances,  asserting  and  vindicating  rights,  curing  or  preventing 
public  or  private  injuries  or  evils,  and  punishing  flagrant  crimes, 
it  is  the  part  of  a  good  magistrate  to  amplify  his  jurisdiction, 
because  it  is  the  office  and  design  of  government  to  secure  right 
and  justice,  protect  the  weak  and  prevent  wrongs.  But  this  is 
not  within  that  category.  This  is  a  case  between  the  powers  of 
the  legislature  on  the  one  hand,  and  the  powers  of  the  people  in 
their  primary  capacity,  on  the  other.  It  is  a  question  whether 
the  people,  in  whom  all  the  sovereignty  of  this  government  resides, 
have  parted  with  their  original,  private,  personal,  individual,  and 
imprescriptible  right  and  power  to  choose  whom  they  will  to  rep- 
resent them  in  Congress,  any  further  than  they  have  done  so  by 
the  specific  limitations  they  imposed  on  themselves  in  the  Federal 
Constitution.  And  until  I  see  that  the  people  have  clearly  imparted 
to  the  state  government  the  power  to  restrain  them,  I  cannot  but 
regard  any  statute  which  affects  to  do  so,  as  a  usurpation  of  their 
undelegated  powers  and  a  violation  of  their  sovereign  rights. 

As  to  the  expediency  of  such  a  provision,  were  it  competent  for 
us  to  make  it,  I  would  not  presume  to  review  the  judgment  of 
the  senate  and  house.  Their  wisdom  would  be  my  guide.  But 
constrained  by  my  own  duty  to  obey  the  supreme  law,  and  there- 
fore, to  examine  in  its  unvarying  light,  every  bill  presented  for 
signature,  I  cannot  shelter  myself  behind  even  their  great  author- 
ity, if  accused  in  my  own  conscience  of  transcending  the  proper 
powers  of  tlie  Constitution. 

It  has  been  suggested,  that  if  this  bill  is  an  usurpation  of  power 
in  the  particular  questioned,  then  Massachusetts  has  for  a  long 
time  had  upon  her  statute-book  a  law  open  to  the  same  objec- 
tion.    But  the  former  inadvertent  adoption  of  an  unconstitutional 


VETO   MESSAGE    OF   GOV.    ANDREW  —  1862.  503 

act  of  legislation  cannot,  surely,  be  pleaded  as  authority  for  its 
repetition.  The  former  adoption  of  a  statute  is  a  fact  not  to  be 
forgotten  when  considering  the  question  of  constitutionality,  since 
there  is  a  certain  presumption,  that  what  the  legislature  has  here- 
tofore done,  has  been  done  rightly  ;  and  I  have  given  full  weight 
to  that  presumption,  in  ray  own  mind.  But  still  it  does  not  pre- 
ponderate over  the  weight  of  great  juridical  authority,  and  over 
the  solemn  judgments  of  the  houses  of  Congress,  repeatedly 
rendered  in  the  regular  exercise  of  their  distinct  constitutional 
powers,  and  uncontrolled  by  the  influences  of  party. 

So,  too,  it  has  also  been  suggested  that,  if  the  criticism  of  the 
unconstitutionality  of  the  clause  in  question  is  correct,  then  our 
members  of  Congress,  elected  for  many  years  under  just  such  an 
act,  have  been  unconstitutionally  chosen.  This,  however,  is  a 
sophism.  Those  who  have  been  seated  in  the  house  of  represen- 
tatives from  Massachusetts,  have  received  the  requisite  votes  of 
the  people  ;  and  if  the  people  have  selected  as  members,  persons 
inhabiting  the  districts  for  which  they  were  chosen,  the  legal  pre- 
sumption is  that  the  people  did  so  because  they  chose  to  do  so, 
not  because  an  unconstitutional  law  so  directed.  In  other  words, 
their  choice,  and  the  direction  of  the  law,  were  coincident  in  the 
particular  cases.  Even  if  it  were  true  that,  in  any  instance,  the 
people  thought  they  were  bound  by  the  law,  and  so  followed  it, 
when  they  would  have  preferred  to  have  done  otherwise,  the 
election  was,  nevertheless,  constitutional,  because  they  apparently 
and  professedly  chose  the  candidate  for  whom  they  voted,  being, 
in  truth  and  in  fact,  free  to  have  done  otherwise,  and  duress  is 
not  to  be  presumed  without  proof. 

It  is  urged  further,  that  it  is  extremely  undesirable  that  persons 
should  be  elected  to  Congress  who  do  not  reside  among  their  con- 
stituents. That  may  be  so.  As  a  rule  I  think  that  it  is  so.  But 
of  the  application  of  the  rule,  and  of  the  exceptions  to  it,  the 
people  are  the  best  judges  ;  and  they  have  reserved  to  themselves 
the  right  and  the  power  to  judge.  How  can  we,  then,  presume 
to  prejudge  their  judgment  and  impose  on  them  our  own?  And 
I  think  that  the  people  have  rightly  reserved  to  themselves  that 
power  ;  for  the  mere  fact  of  legal  domiciliation,  in  a  given  instance, 
does  not  always  render  one  more  familiar  with  the  district  in 
which  his  domicile  is  cast  than  with  others. 

For  example,  I  cannot  think  that  Daniel  Webster  was  more 
familiar  with  the  Plymouth  district  and  its  people,  merely  for  the 
fact  of  his  legal  domicile  in  Marshfield,  where  he  spent  a  few 
weeks  of  the  year,  than  he  was  with  the  people  and  interests  of 
the  Boston  district,  where  he  had  resided  for  years,  and  where 


504  MASSACHUSETTS    ELECTION   CASES 1853-1885. 

were  the  seat  and  centre  of  his  political,  social,  and  business  life. 
Nor  can  I  think  that  the  transference  of  the  town  of  Quincy  from 
one  district  to  another,  rendered  John  Quincy  Adams  any  more 
or  less  fitted  to  represent  either  the  one  or  the  other  of  them. 
Nor  would  it  surprise  me  if  the  people  of  one  of  the  new  Boston 
districts  should  think  a  gentleman  not  unworthy  to  represent 
them,  whose  business  pursuits,  whose  children's  school,  whose 
church,  whose  family  and  social  ties  and  interests,  are  all  within 
its  borders,  but  who  may  customarily  sleep  and  vote  in  some  ward 
not  included  within  the  territory  of  such  district.  The  necessary 
division  of  the  city  of  Boston  between  two  districts,  affords  a 
perfect  test  of  the  unsoundness  of  making  an  iron  rule  in  the 
premises,  and  of  the  wisdom  of  the  people  in  reserving  the  right 
to  judge  in  the  matter  for  themselves. 

I  have  sous;ht  anxiously  for  some  excuse  which  would  justify 
me  to  myself  in  signing  this  bill.  I  have  reflected  that,  after  all, 
the  provision  of  the  clause  in  question,  would  be  only  a  nullity  ; 
that  any  person  elected  to  Congress,  and  having  the  constitutional 
qualifications,  notwithstanding  that  he  lacked  the  special  qualifi- 
cation under  this  bill,  would  surely  receive  and  retain  his  seat. 
But  he  would  get  it  only  by  unseating  another  to  whom  the  gov- 
ernor for  the  time  being  would  have  given  the  certificate,  unless 
such  governor  should  undertake  to  pass  upon  the  constitutionality 
of  the  clause,  and  decide  to  render  the  certificate  to  the  candidate 
who  had  received-  the  larger  number  of  votes,  disregarding  the 
question  of  domicile  except  in  so  far  as  it  is  prescribed  by  the 
Constitution  of  the  United  States. 

And  I  cannot  believe  that  I  have  the  right  to  be  instrumental 
in  compelling  the  people  to  exercise  their  constitutional  rights  at 
the  risk  of  a  struggle  for  his  seat  by  the  representative  of  their 
choice,  —  nor  that  I  ought  to  cast  upon  a  future  magistrate  a 
burden  which  the  Constitution  in  the  clearest  terms  imposes  upon 
m3'self. 

Note.  —  Since  the  foregoing  message  was  sent  to  the  senate, 
my  attention  has  been  called  to  another  early  case  in  Congress, 
from  Maryland,  —  that  of  William  Pinkney,  —  of  which  I  found 
no  note  in  the  "Annals  of  Congi-ess,"  nor  in  Clark  and  Hall's 
cases  of  Contested  Elections. 

In  Wheaton's  Life  of  Pinkney,  page  7,  that  author  says  :  "  In 
1790  he  [William  Pinkney]  was  elected  a  member  of  Congress, 
and  his  election  was  contested  upon  the  ground  that  he  did  not 
reside  in  the  district  for  which  he  was  chosen,  as  required  by  the 
law  of  the  state.  But  he  was  declared  duly  elected,  and  returned 
accordingly,  by  the  executive   council,  upon    the  principle    that 


VETO    MESSAGE    OF   GOV.    ANDREW — 18G2.  505 

the  state  legislature  had  no  authority  to  require  other  qualifica- 
tions than  those  enumerated  in  the  Constitution  of  the  United 
States  ;  and  that  the  power  of  regulating  the  times,  places,  and 
manner  of  holding  the  elections  did  not  include  that  of  superin- 
ducing the  additional  qualification  of  residence  within  the  district 
for  which  the  candidate  was  chosen.  He  made  on  the  occasion 
what  was  considered  a  very  powerful  argument  in  support  of  his 
own  claim  to  be  returned  ;  but  declined  on  account  of  his  pro- 
fessional pursuits  and  the  state  of  his  private  affairs,  to  accept 
the  honor  which  had  been  conferred  upon  him." 

It  may  be  interesting  to  add  that  I  have  also  since  been  in- 
formed, by  the  learned  author  of  the  ^'■History  of  New  England 
during  the  Stuart  dynasty,"  that  during  the  colonial  period  of 
Massachusetts,  persons  were,  in  many  cases,  chosen  deputies  to 
the  general  court,  who  were  not  inhabitants  of  the  towns  by 
which  they  were  returned.  For  example,  Captain  John  Hull,  the 
famous  mint-master,  who  was  from  first  to  last  a  citizen  of  Boston, 
represented  AVestfield  in  1674,  Concord  in  1676,  and  Salisbury  in 
1680.* 

John  A.  Andrew. 

[Upon  the  return  of  the  bill,  it  was  reconsidered  b}^  the  senate 
and  house,  and  two-thirds  of  each  branch  of  the  legislature,  not- 
withstanding the  objections  of  the  governor,  agreed  to  pass  the  same, 
so  that  it  had  the  force  of  law,  and  became  cba[>ter  226  of  the  acts 
of  1862.  In  the  act  of  1872,  chapter  300,  dividing  the  Common- 
wealth into  districts  for  the  election  of  representatives  in  Congress, 
this  restiiction  (being  an  inhabitant  of  the  same  district)  was  con- 
tinued. Pub.  Sts.  ch.  9,  §  1.  But  in  the  redistricting  act  of  1882, 
chapter  253,  the  restriction  was  omitted.] 

*  [Note  by  the  Editors.  Whenever  the  question  has  come  before  either  house  of 
Congress,  it  has  been  held,  in  accordance  with  the  above  opinion  of  Gov.  Andrew, 
that  a  state  cannot  add  to,  or  change  the  qualifications  prescribed  for  representatives 
in  Congress  by  the  Constitution  of  the  United  States.  Turney  v.  Marshall  (House, 
1856),  1  Bartlett  Cong.  Election  Cases,  167;  Fouke  v.  Trumbull,  lb.;  In  re  Trum- 
bull (Senate,  1856),  lb.  618.  And  residence  in  the  district  from  which  the  repre- 
sentative is  elected  is  not  a  qualification  required  by  the  Constitution  of  the  United 
States,  BO  that  any  law  making  it  a  qualification  is  unconstitutional.  Barney  v. 
McCreerij  (Senate,  1807),  Clarke  &  Hall  Cong.  Elections  Cases,  167.  The  question 
is  ably  and  elaborately  discussed  by  Hon.  John  Q.  A.  Brackett  in  an  article  upon 
"  The  Legal  Qualifications  of  Representatives,"  published  in  3  American  Law  Review, 
410  (April,  1869), — in  which  he  concurs  in  the  opinion  of  Gov.  Andrew.] 


INDEX 


ACTION  AGAINST  SELECTMEN. 

1.  The  remedy  of  one  whose  name  is  erased  from  the  voting  list  by  the 
selectmen  before  the  voting  commences,  and  whose  vote,  when  offered,  is 
refused  by  them,  is  an  action  against  them  for  erasing  his  name,  and  not  an 
action  for  refusing  his  vote.    Harris  v.  Whitcomb  (Sup.  Jud.  Court),  404. 

2.  In  an  action  against  selectmen  for  refusing  to  receive  the  vote  of  an 
inhabitant  of  the  town,  parol  evidence  that  the  plaintiff's  name  was  on  the 
voting  list  is  inadmissible  without  first  giving  notice  to  produce  the  list.    lb. 

3.  No  action  lies  against  the  selectmen  of  a  town  for  refusing  to  put  upon 
the  list  of  voters  therein  the  name,  and  rejecting  the  vote,  of  one  who  was  not 
a  legal  voter,  although  the  proof  produced  by  him  to  them  was  sufficient  to 
establish,  prima  facie,  his  right  to  vote;  and  they  may  prove  at  the  trial  that 
in  fact  he  was  not  a  legal  voter.    Lombard  v.  Oliver  (Sup.  Jud.  Court),  422, 

4.  In  an  action  against  the  selectmen  of  a  town  for  refusing  to  put  the 
plaintiff's  name  upon  the  list  of  voters  and  rejecting  his  vote,  the  plaintiff  may 
prove  his  own  statements  relating  to  his  residence,  made  to  the  selectmen 
before  offering  his  vote,  not  under  oath,  for  the  purpose  of  furnishing  to  them 
evidence  of  his  having  the  legal  qualifications  of  a  voter ;  and  he  may  testify 
to  his  own  intention  in  leaving  the  town  for  a  prolonged  absence,  previously  to 
the  time  of  the  acts  complained  of.    Lombard  v.  Oliver  (Sup.  Jud.  Court),  425. 

AFFIDAVIT. 

See  Evidence,  8,  9,  10. 

ALDERMEN. 

Recount  of  Votes  by. 

1.  Where  the  ballots  cast  at  an  election,  in  certain  wards  in  a  city,  were  not 
transmitted  to  the  city  clerk  by  the  constal)le  in  attendance  at  the  election, 
nor  by  one  of  the  ward  officers,  other  than  the  ward  clerk,  and  the  ward  clerk 
did  not  retain  custody  of  the  seal,  as  required  (Pub.  Stats.,  chap.  7,  J  28),  but 
the  ballots  were  returned  by  the  clerks  of  the  wards,  or  other  unauthorized 
persons,  and  the  ward  seals  were  returned  with  the  ballots  to  the  city  clerk, 
although  there  was  no  evidence  of  fraud,  or  tampering  with  the  Iiallots,  it  was 
held,  that  such  failure  to  comply  with  the  statute  regarding  the  return  and 
preservation  of  ballots  deprived  the  aldermen  of  any  right  to  recount  such 
ballots.    Davis  v.  Murphy,  177. 

2.  Where  the  written  notice,  on  the  part  of  ten  or  more  citizens  of  any 
ward,  required  for  a  recount  and  examination,  by  the  aldermen,  of  the  votes 
cast  in  the  ward,  is  not  given  to  the  city  clerk  within  the  time  provided  by  law, 
the  aldermen  have  no  right  to  recount  such  votes.    lb. 

3.  Under  Pub.  Stats.,  chap.  8,  ^  10  and  11,  the  time  within  which  a  petition 
for  a  recount  of  votes  can  be  received  and  acted  upon,  expires  with  the 
adjournment  of  the  meeting  of  the  clerks.    Haskell  v.  Closson,  233. 

507 


I 


508  INDEX. 

Aldebmen  —  Concluded. 

4.  A  recount  of  votes  in  a  ward  of  a  city  by  the  aldermen,  after  the  time 
fixed  therefor  by  law,  is  ille,!?al  and  void;  and  the  return  of  the  election,  as 
amended  by  the  result  of  such  recount,  cannot  be  regarded  as  the  true  re- 
turn from  the  ward.    lb. 

5.  Under  the  Pub.  Stats.,  chap.  7,  $  36,  the  board  of  aldermen  of  a  city, 
upon  a  proper  statement  in  writing  by  ten  or  more  qualified  voters  of  any 
ward,  filed  with  the  city  clerk  within  three  days  following  any  election,  has 
the  jurisdiction  and  authority  to  open  the  envelope  containing  the  ballots 
thrown  at  the  election,  and  recount  the  same,  including  those  thrown  for  the 
offices  of  sheriff  and  district  attorney.     Opinion  of  the  Justices,  468. 

6.  Under  the  Pub.  Stats.,  chap.  7,  §  36,  providing  for  the  filing,  by  ten  or 
more  qualified  voters  of  a  city,  of  "  a  statement  in  writing  that  they  have 
reason  to  believe  that  the  returns  of  the  ward  officers  are  erroneous,  specifying 
wherein  they  deem  them  in  error,"  a  statement  that  the  signers  have  reason  to 
believe  that  the  returns  of  the  ward  officers  are  erroneous  in  regard  to  certain 
ofiicers  mentioned,  is  sufficient,     lb. 

See  Apportionment  of  Representatives. 

ALIEN. 

See  Naturalization. 

ALTERATION  IN  RETURN  OR  RECORD  OF  VOTES. 

See  Return  of  Votes,  7,  9,  11. 

AMENDMENT  TO  PETITION. 

1.  Under  a  general  allegation  in  a  petition  for  the  seat,  that  the  petitioner 
received  a  plurality  of  votes  cast,  he  was  allowed  to  file  specifications  before 
the  committee,  setting  up  fraudulent  conduct  on  the  part  of  the  selectmen  of 
certain  towns  in  the  district,  and  claiming  that  by  reason  thereof,  the  entire 
vole  of  those  towns  should  be  rejected,  so  that  he  would  have  a  plurality  of  all 
the  remaining  votes  cast  in  the  district.    Palmer  v.  Howe,  145. 

2.  It  seems  that  a  claim  for  a  seat  in  the  senate  should  be  made  by  a 
petitio7i,  stating  the  ground  upon  which  the  seat  is  claimed ;  but  where  the 
petition  does  not  state  such  ground,  the  petitioner  may  be  allowed  to  file 
specifications  alleging  it.    Jenks  v.  Hayes,  198. 

3.  Under  a  general  allegation  in  the  petition  that  persons  not  qualified  were 
allowed  to  vote,  the  petitioners,  on  motion  of  the  sitting  member,  were  ordered 
to  file  written  specifications  of  the  grounds  on  which  they  claimed  that  illegal 
votes  were  cast.     Claflin  v.  Wood,  353. 

AMENDMENT  TO  RETURN. 

See  Return  of  Votes,  7,  9,  11,  12. 

APPORTIONMENT  OF  REPRESENTATIVES. 

Under  the  21st  amendment  to  the  Constitution,  providing  that  after  the 
apportionment  of  representatives  to  the  county  of  Suffolk,  the  mayor  and 
aldermen  of  Boston  shall  divide  the  county  into  representative  districts  so  as 
to  apportion  the  representation  assigned  to  the  county  equally,  as  nearly  as 
may  be,  according  to  the  relative  number  of  legal  votes  in  the  several  districts, 
—  the  duty  is  imposed  upon  the  mayor  and  aldermen,  not  only  of  dividing  the 
county  into  districts,  but  also  of  designating  the  number  of  representatives, 
not  exceeding  three,  to  which  each  district  is  entitled,  and  their  action  in  such 
apportionment  is  not  merely  ministerial,  but  judicial,  and  cannot  be  revised  by 
the  house  of  representatives.    Lothrop,  Pet.  49. 

The  report  of  the  committee  in  the  above  case  was  affirmed  by  the  justices 
of  the  supreme  judicial  court.     Opinion  of  Justices,  409. 


INDEX.  509 

ASSESSORS. 

1.  The  assessors  of  a  town  have  no  power  to  abate  the  tax  of  a  voter,  so  as 
to  affect  his  right  of  suffrage,  except  npon  his  application,  and  with  his  full 
knowledge  and  consent,  and  any  attempt  to  abate  it  without  such  consent 
will  be  ineffectual.    Baker  v.  Hunt,  378. 

2.  The  assessors  of  a  town  assessed  a  voter  there,  nearly  80  years  of  age, 
for  the  year  1882,  and  afterwards,  without  any  application  from  him,  abated 
the  tax  on  account  of  his  age,  infirmity  and  poverty,  supposing  that  he  could 
still  remain  a  voter,  and  did  not  assess  him  in  1883.  His  name  remained  on 
the  voting  list  until  just  before  the  election  in  1883,  when,  although  it  was  upon 
the  posted  list,  a  pencil  was  drawn  through  his  name  on  the  list  in  the  hands 
of  the  selectmen,  with  a  note  that  the  reason  was  that  he  was  not  taxed.  On 
the  Saturday  before  the  election,  he  went  to  the  selectmen's  room  and  paid  his 
poll  tax  for  1882  to  the  town  collector,  taking  a  receipt,  and  then  requested  the 
selectmen  to  put  his  name  on  the  voting  list,  which  they  declined  to  do;  —  it 
was  held  that  his  name  should  have  been  placed  on  the  voting  list.    lb. 

BALLOTS. 

Ekastjee  upon. 

1.  A  ballot,  on  which  the  name  of  the  regular  candidate  for  senator  was 
covered  by  a  paster,  loosely  attached,  bearing  the  name  of  Jeremiah  Cla,  the 
end  of  the  paster,  evidently  containing  the  last  two  letters  of  the  name  Clark, 
having  been  torn  off,  should  be  counted  for  Jeremiah  Clark,  who  was  the 
regular  candidate  of  the  opposing  party  for  that  office.     Clark  v.  Salmon,  191. 

2.  Where,  on  ballots  for  state  officers,  containing  the  printed  name  of 
Jeremiah  Clark,  for  senator,  there  was  written,  in  pencil  upon  the  margin,  at 
the  bottom  of  the  ballot,  "  W.  F.  Salmon,  senator,"  the  name  of  Clark  not 
being  erased;  —  or  where  a  strip  was  securely  attached,  by  pins,  just  below 
the  name  of  Clark,  on  which  was  printed  for  senator,  etc  ,  William  F.  Salmon, 
such  strip  not  covering  the  name  of  Clark,  so  that,  on  each  ballot,  the  names 
of  both  candidates  for  the  office  appear; — the  votes  cannot  be  counted  for 
either  candidate.    lb. 

3.  But  see  to  effect  that  where  one  name  is  printed,  and  another  is  written, 
the  vote  should  be  counted  for  the  name  written.  Editorial  Note  to  above 
case,  194. 

4.  Where,  on  a  ballot  for  state  officers,  upon  which  the  name  of  Salmon 
was  printed,  as  the  regular  democratic  candidate  for  senator,  the  name  of 
Clark,  who  was  the  regular  republican  candidate,  was  pasted  over  the  name  of 
the  candidate  for  some  other  office  than  that  of  senator,  leaving  the  name  of 
Salmon,  for  senator,  unimpaired,  —  there  being  on  the  paster  no  designation 
of  the  office  for  which  Clark  was  named,  —  the  vote  cannot  be  counted  as  a 
vote  for  Clark,  for  senator,  but  will  be  counted  for  Salmon.    lb.,  191. 

5.  Votes  pasted  or  written  on  ballots  with  no  designation  of  office  for  which 
they  are  intended,  cannot  be  counted.    Editorial  Note,  195. 

6.  A  ballot,  npon  which  the  printed  names  of  the  two  regular  candidates  of 
the  party  were  erased  by  pencil,  and  the  words  "fredrc  p.  Shatc  "  were  found 
by  the  committee,  upon  inspection,  to  be  written,  in  pencil,  along  the  side  of 
the  ballot,  some  of  the  letters  being  somewhat  indistinct,  will  be  counted  for 
Frederick  P.  Shaw,  upon  proof  that  he  was  a  candidate  at  the  election,  and 
that  no  other  person,  by  name  of  Frederick  Shaw,  lived  in  the  city,  although 
there  was  a  person  there  named  Franklin  Shaw.    Shato  v.  Buckminster,  221. 

7.  Where  pencil  lines,  although  not  very  dark,  are  drawn  over  the  whole 
surname  of  a  candidate  upon  the  ballot,  leaving  the  rest  of  the  name  unmarked, 
the  ballot  cannot  be  counted  for  such  candidate.    lb. 


510  INDEX. 

Ballots  —  Continued. 

8.  The  provisions  of  the  statute  (Pub.  Stats  ,  chap.  7,  {  1),  that  officers 
shall  be  voted  for  upon  one  ballot,  are  directory ;  and  where  a  voter  took  the 
rcular  ballot  of  one  party,  and  erased  fi'om  it  all  names  but  that  of  the  candi- 
date for  governor,  and  then  took  the  regular  ballot  of  the  opposing  party  and 
erased  from  it  only  the  name  of  the  candidate  for  governor,  and  then  placed 
the  two  papers  in  an  envelope,  and  deposited  it  in  the  ballot-box,  it  was  held, 
that  the  vote  for  senator  upon  such  Ijallot  should  be  counted.  Whitaker  i^ 
Cxnnmings,  360. 

9.  Where  on  the  ballot,  the  title  to  the  office  for  which  a  person  is  a  candi- 
date, —  that  of  representative,  is  wholly  or  partially  obliterated  by  a  paster  for 
senator  pasted  on  the  ballot,  the  ballot  will  I)e  counted  as  a  vote  for  represent- 
ative for  the  person  named,  —  the  presumption  being  that  the  voter  intended  to 
vote  for  such  person  for  representative  and  not  to  have  his  vote  inoperative. 
Chappelle  v.  Prince,  396. 

Exposure  of. 

10.  Where  the  votes  were  counted  eveiy  hour  during  the  election  by  the 
warden,  who  did  not  submit  every  parcel  of  votes  to  the  ward  clerk  for  re- 
count, and  did  not  do  the  figuring,  but  left  it  entirely  with  the  clerk  to  enter 
upon  the  record  the  number  counted  in  the  different  parcels,  and  after  the  polls 
closed  took  the  votes  home,  leaving  them  in  a  room  with  several  persons  for 
ten  minutes  while  he  was  away,  and  afterwards  tying  them  up  in  bundles  and 
putting  them  in  a  basket,  and  taking  the  basket  to  a  store,  where  it  was  left 
twenty  minutes,  and  afterwards  taking  it  home,  and  an  hour  later  at  home,  in 
presence  of  some  of  the  ward  officers  and  other  persons,  rccountinr  the  votes 
for  representative,  —  the  recount  changing  the  result  and  showing  that  the 
petitioner  was  elected,  —  it  was  held,  although  a  recount  by  the  committee 
confirmed  the  second  count  by  the  warden,  —  the  first  count  and  declaration  at 
the  polls  must  stand  as  the  true  result,  and  petitioner  was  given  leave  to  with- 
draw.    Bea7i  V.  Tucker,  89. 

11.  Where  the  ballots  cast  at  an  election,  in  certain  wards  in  a  city,  were 
not  transmitted  to  the  city  clerk,  by  the  constable  in  attendance  at  the  election, 
nor  by  one  of  the  ward  officers,  other  than  the  ward  clerk,  and  the  ward  cleric 
did  not  retain  custody  of  the  seal,  as  required  (Pub.  Stats.,  chap.  7,  ^  28),  but 
the  ballots  were  returned  by  the  clerks  of  the  wards,  or  other  unauthorized 
persons,  and  the  ward  seals  were  returned,  with  the  ballots,  to  the  city  clerk, 
although  there  was  no  evidence  of  fraud,  or  tampering  with  the  ballots,  it  was 
held,  that  such  failure  to  comply  with  the  statute  regarding  the  return  and 
preservation  of  ballots,  deprived  the  aldermen  of  any  right  to  recount  such 
ballots.    Dat:is  v.  Murphy,  177. 

12.  Where  the  votes  cast  at  an  election,  in  a  town,  are  not  preserved  in 
the  manner  required  by  law,  but,  after  the  adjournment  of  the  meeting,  are 
taken,  in  a  ballot  box,  into  another  room,  by  the  selectmen,  then  tied  up  in  a 
paper,  put  in  an  unlocked  closet,  and,  a  day  or  two  later,  sealed  up,  but  not 
delivered  to  the  town  clerk  until  within  a  day  or  two  previous  to  the  hearing 
before  the  committee  of  the  house  of  representatives,  such  votes  have  not  been 
preserved  in  such  a  manner  as  to  justify  a  recount  by  the  house  of  representa- 
tives.   76. 

13.  Where  the  votes  cast,  in  certain  wards  in  a  city,  were  not  preserved  and 
transmitted  to  the  city  clerk,  in  the  manner  required  by  law,  but  were  trans- 
mitted by  unauthorized  persons,  with  the  ward  seals  enclosed  with  them,  and 
afterwards  were  recounted  by  the  aldermen,  without  authority,  by  which 
recount  the  declared  result  of  the  election  was  changed,  the  committee  refused 
to  count  the  votes,  and  allowed  the  declared  result  to  stand.    lb. 


INDEX.  "  511 

Ballots  —  Concluded. 

Form  of  Ballot. 

14.  The  provisions  of  the  statute  (Pub.  Stats.,  chap.  7,  ^  1),  that  officers 
shall  be  voted  for  upon  one  liallot,  are  dh-ectory ;  and  where  a  voter  toolc  the 
regular  ballot  of  one  party,  and  erased  from  it  all  names  but  that  of  the  candi- 
date for  governor,  and  then  took  the  regular  ballot  of  the  opposing  party  and 
erased  from  it  only  the  name  of  the  candidate  for  governor,  and  then  placed 
the  two  papers  in  an  envelope,  and  deposited  it  in  the  l)allot-box,  it  was  held, 
that  the  vote  for  senator  upon  such  ballot  should  be  counted.  Whitaker  ^ 
Cummings,  360. 

15.  When  ballots  with  distinguishing  marks  should  be  counted.  Editorial 
Note  to  Whitaker  S;  Cummings,  363. 

See  Envelope. 

Mistake  in  Name. 

Recount  of  Votes. 

Votes. 

BRIBERY  AND  CORRUPTION. 

The  distribution  among  voters  of  checks  redeemable  in  liquors,  cigars,  etc., 
at  a  saloon  near  the  polls,  and  the  distribution  in  the  ward  room,  at  noon 
during  the  election,  of  a  small  quantity  of  refreshments,  done  by  members  of 
the  political  party  of  which  the  sitting  member  was  the  candidate,  —  the 
expenses  of  the  campaign  being  paid  by  him  and  others,  —  if  such  acts  are  not 
shown  actually  to  have  influenced  voters,  or  to  have  been  authorized,  con- 
sented to,  or  knowingly  ratified  by  such  members,  will  not  invalidate  the 
election.    Prescott  v.  Crossman,  303. 

BURDEN  OF  PROOF. 

See  Evidence,  1,  2,  3,  4,  5,  6,  7. 


CANDIDATE. 


See  Ineligible  Candidates. 
Mistake  in  Name. 


CANVASSING  BOARD. 

1.  The  duties  of  a  board  of  examiners  of  election  returns,  under  Pub.  Stats, 
chap.  7,  ^  84,  are  purely  ministerial,  and  the  board  cannot  receive  or  consider 
evidence  of  extrinsic  circumstances,  l)ut  is  confined  to  the  records  of  votes 
returned  and  laid  before  it;  —  and  mandamus  will  not  lie  to  compel  the  board 
to  count  certain  votes,  containing  the  initial  letter  only  of  the  Christian  name 
of  a  candidate,  with  other  votes  containing  his  name  in  full.  Clark  v.  Board 
of  Examiners  (Sup.  Jud.  Court),  456. 

2.  The  difference  in  this  respect  between  a  canvassing  or  returning  board, 
and  a  tribunal,  like  the  senate  or  house,  empowered  to  try  election  contro- 
versies.   Editorial  Note  to  Wright  v.  Hooper,  105. 

See  Clerk  of  Town. 
Returns  of  Votes. 

CERTIFICATE   OF   ELECTION. 

1.  The  provisions  of  the  statute,  regarding  the  meeting  of  clerks,  to  examine 
and  compare  transcripts,  and  ascertain  what  persons  have  been  elected,  should 
^c  strictly  complied  with,  and  the  authority  of  such  clerks,  to  make  out  a 
certificate  of  election,  expires  with  the  time  prescribed  by  statute  for  so  doing. 
Stimpson  v.  Breed,  257. 


512  nsT)EX. 

Cebtiticate  of  Election — Concluded. 

2.  The  fact  that  snch  clerks  did  not  meet,  to  examine  and  compare  tran- 
scripts, until  two  days  after  the  expiration  of  the  time  prescribed  by  statute, 
no  unavoidable  accident  or  emergency  preventing  a  meeting  within  that  time, 
while  not  invalidating  the  election,  will  invalidate  the  return  and  certificate  of 
the  clerks,  made  at  such  delayed  meeting.    lb. 

3.  Where  the  return  and  certificate  of  the  election  by  the  clerks,  are  invalid, 
and  set  aside,  the  election  will  not  be  avoided,  if  the  true  result  can  be  ascer- 
tained, independently  of  the  defective  record  and  return ;  and,  to  ascertain 
that  result,  the  ballots  cast  for  representative,  having  been  properly  preserved, 
were  recounted.    76. 

4.  Where  the  clerks  of  the  four  towns  composing  the  representative  dis- 
trict, did  not  meet  on  the  day  following  the  election,  to  compare  transcripts  of 
the  records  of  votes,  and  ascertain  who  was  elected,  but  two  only  of  the  four 
met,  and  signed  a  certificate  in  blank,  which  a  few  days  later  was  signed  by 
another  of  the  clerks,  who  called  and  left  his  transcript,  and  afterwards  the 
fourth  clerk  appeared  and,  with  the  clerk  having  possession  of  the  certificate, 
filled  the  blanks  from  the  returns  of  the  several  clerks,  —  it  was  held  that  the 
return  and  certificate,  so  made,  were  invalid  and  must  be  set  aside.  Haijncs 
V.  Hdlis,  300. 

5.  'Uliere  the  certificate  of  an  election  is  invalid,  the  election  is  not  neces- 
sarily avoided,  but  the  result  may  be  ascertained  by  other  means.  And  in 
such  case,  the  result  will  be  ascertained  by  examination  of  the  official  town 
records  of  the  vote,  especially  where  the  ballots  in  three  of  the  towns  have 
been  destroyed  (no  notice  for  their  preservation  having  been  served  on  the 
clerks).    lb. 

6.  Where  the  clerks  of  the  four  towns  composing  the  district,  did  not  meet 
to  compare  records  and  ascertain  the  I'esult,  but,  owing  to  a  storm,  one  town 
clerk  failed  to  appear,  so  that  the  vote  of  that  town  was  not  counted  or  can- 
vassed in  preparing  the  certificate  of  election,  —  it  was  held  that  the  certificate 
issued  was  void,  and  the  result  of  the  election  was  ascertained  by  canvassing 
the  votes  cast  in  the  district.    Hillman  v.  Flanders,  338. 

7.  Certificate  of  election  is  conclusive  evidence  in  any  collateral  proceeding, 
and  prima  facie  evidence  of  title  to  office  in  an  election  controversy,  only 
when  it  is  official.     Editorial  Xofe  to  Stimpson  v.  Breed,  263. 

S.    Evidence  to  ascertain  result  when  certificate  of  election  is  void.    lb.  264. 

CERTIFICATE   OF  NATURALIZATION. 

See  Naturalization'. 

CITIZENSHIP. 

See  Natttralization. 

CLERK  OF  COURTS. 

The  acceptance  of  the  office  of  clerk  of  the  supreme  judicial  court  and 
superior  court  by  a  member  of  the  house  of  representatives  vacates  his  seat 
as  representative.    Iri  re  Griffin,  71. 

CLERK  OF  TOWN. 

Failuhe  to  meet  to  compaee  Thaxsceipts. 
1.  The  provisions  of  the  statute,  regarding  the  meeting  of  clerks,  to  examine 
and  compare  transcripts,  and  ascertain  what  persons  have  been  elected,  should 
be  strictly  complied  with,  and  the  authority  of  such  clerks,  to  make  out  a 
certificate  of  election,  expires  with  the  time  prescribed  by  stat  ate  for  so  doing. 
Stimpson  v.  Breed,  257.  • 


INDEX.  513 

Clebk  of  Town—  Concluded. 

2.  The  fact  that  such  clerks  did  not  meet,  to  examine  and  compare  tran- 
scripts, until  two  days  after  the  expiration  of  the  time  prescribed  by  statute, 
no  unavoidable  accident  or  emergency  preventing  a  meeting  within  that  time, 
while  not  invalidating  the  election,  will  invalidate  the  return  and  certificate  of 
the  clerks,  made  at  such  delayed  meeting.    lb. 

3.  Where  the  clerks  of  the  four  towns  composing  the  representative  dis- 
trict, did  not  meet  on  the  day  following  the  election,  to  compare  transcripts  of 
the  records  of  votes,  and  ascertain  who  was  elected,  but  two  only  of  the  four 
met,  and  signed  a  ceritficr.'.e  in  blank,  which  a  few  days  later  was  signed  by 
another  of  the  clerks,  who  called  and  left  his  tnvnscript,  and  afterwards  the 
fourth  clerk  appeared  and,  with  the  clerk  having  possession  of  the  certificate, 
filled  the  blanks  from  the  returns  of  the  several  clerks,  — it  was  held  that  the 
return  and  certificate,  so  made,  were  invalid  and  must  be  set  aside.  Haynes 
V.  Hillis,  300. 

4.  Where  the  clerks  of  the  four  towns,  composing  the  district,  did  not  me6t 
to  compare  records  and  ascertain  the  result,  but,  owing  to  a  storm,  one  town 
clerk  failed  to  appear,  so  that  the  vote  of  that  town  was  not  counted  or  can- 
vassed in  preparing  the  certificate  of  election,  —  it  was  held  that  the  certificate 
issued  was  void,  and  the  result  of  the  election  was  ascertained  by  canvassing 
the  votes  cast  in  the  district.    Uillman  v.  Flanders,  33S. 

Place  of  Meeting. 

5.  Failure  of  town  clerks  to  meet  to  examine  and  compare  transcripts,  at 
the  place  designated  by  the  county  commissioners,  as  required  by  statute,  is 
unjustifiable,  but  where  there  is  no  pretence  that  such  failure  aflFected  the 
declared  result  of  the  election,  the  return  will  be  regarded  as  valid.  Tobey  v. 
King,  60. 

6.  The  meeting  of  town  clerks  at  the  place  designated,  to  compare  tran- 
scripts and  ascertain  the  result  of  the  election  for  representative,  is  not  essen- 
tial to  the  validity  of  their  action,  and  meeting  at  another  place  will  not 
necessarily  invalidate  their  action.     Editorial  Note  to  Stimpson  v.  Breed,  264. 

For  unauthorized  recount  of  votes  by. 

See  Recount  of  Votes,  55,  56. 

For  irregularity  in  action  of  clerks,  and  effect. 

See  Return  of  Votes,  5,  6,  7,  8,  9,  11,  12,  16,  18,  19,  20,  21,  22. 

CONGRESS,  QuAiiFicATioNS  of  Representative. 

See  REPRESF.NTATrvE  IN  Congress. 


CONSTABLE. 


CORRUPTION. 


See  Officer. 
See  Bribery  AND  Corruption. 


COUNCILLOR. 

1.  Under  the  16tli  amendment  to  the  Constitution,  regarding  the  election  of 
councillors,  and  providing  that  the  governor,  with  five  or  more  councillors, 
shall  examine  the  returned  copies  of  the  records  of  votes  and  issue  his  sum- 
mons to  such  persons  as  appear  to  be  chosen  councillors,  and  that  the  secretary 
shall  lay  the  returns  before  the  senate  and  house  of  representatives  on  the 
first  Wednesday  in  January,  to  be  by  them  examined  and  the  elex^tion  declared 
and  published,  the  senate  and  house  of  representatives  have  a  right  to  go 
behind  the  returns  of  votes  for  councillor,  and  to  correct  any  errors,  especially 
*if  such  errors  are  the  result  of  fraudulent  conduct.    Rice  v.  Welch,  128. 


514  INDEX. 

CorxciLLOR  —  Concluded. 

2.  This  right  will  be  exercised  only  upon  satisfactory  preliminary  proof  of 
such  substantial  facts  or  well  grounded  causes  of  suspicion  as  would  induce 
strong  conviction  that  fraud  or  mistake,  prejudicial  to  the  contestant,  might 
appear  upon  such  examination  ;  and  in  the  absence  of  such  preliminary  proof, 
the  returns  of  the  city  and  town  officials,  as  sworn  officers,  should  stand  as 
correct.    lb. 

.  3.  The  mere  statement  that  the  contestant  and  others  Lave  strong  reasons 
for  believing  that  important  errors  were  made  in  the  return  of  votes,  the  cor- 
rection of  which  would  change  the  result;  that  the  contestant  was  elected  and 
a  count  of  votes  would  so  show;  and  the  fact  that  the  votes  at  the  municipal 
election  in  Cambridge  had  been  counted  by  the  same  persons  who  counted  the 
votes  for  councillor,  and  in  several  cases  errors  were  found  in  their  count  of 
votes  at  such  municipal  election,  ai-e  insufficient  reasons  for  a  recount  of  votes 
for  councillor,    lb. 

COUNTING  VOTES. 

See  Electiox,  3,  6,  8,  9,  10,  11,  12,  13. 
Envelope,  1,  2. 
Mistake  in  Count,  1,  2. 
Recount  of  Votes. 
Selectmen,  3,  4,  5. 

See  Evidence,  8,  9,  10. 

See  Apportionment  of  Representatives. 
Representative  in  Congress. 


DEPOSITION. 
DISTRICT. 


DISTRICT  ATTORNEY. 

It  is  the  duty  of  the  governor  and  council,  upon  application  of  a  person 
claiming  an  election  as  district  attorney,  to  recount  the  ballots  for  that  office, 
duly  sealed  up  and  preserved  (Pub.  Stats,  chap.  1,^^  27,  31),  which  were  cast 
in  towns,  but  not  those  cast  in  cities,  and  upon  comparison  of  the  ballots  so 
recounted  with  the  other  returns,  to  ascertain  which  of  the  persons  voted  for 
appears  to  be  elected.     Opinion  of  the  Justices,  432. 

After  the  governor  and  council  have,  upon  the  application  of  a  person  claim- 
ing an  election  as  district  attorney,  recounted  certain  ballots  given  for  that 
office,  and  have  issued  a  certificate  of  election  to  the  person  appearing  to  be 
elected,  they  have  no  power  to  recount  other  ballots.    lb. 

DOMICILE. 

General  Principles. 

1.  The  word  "inhabitant"  in  the  Constitution,  prescribing  the  qualifica- 
tions of  members  of  the  legislature,  has  the  same  meaning  as  "  resident." 
Ordway  v.  Howe,  3. 

2.  Two  things  must  concur  to  constitute  inhabitancy  or  domicile:  first, 
residence;  and  seconf/,  the  intention  to  make  it  a  home  — the  fact  and  the 
intent.  Residence  for  however  long  a  time  continued  will  not  constitute  domi- 
cile, unless  accompanied  with  the  intention  of  making  it  a  home,  nor  will  the 
shortness  of  time  in  which  the  new  home  is  enjoyed,  defeat  the  acquisition  of 
domicile,  when  accompanied  with  the  intention,    lb. 

3.  Every  person  has  a  domicile ;  he  can  have  but  one  at  the  same  time  for 
the  same  purpose.  The  place  of  birth  is  the  domicile,  if  at  the  time  of  birth 
it  is  the  domicile  of  his  parents.  The  domicile  arising  from  birth  remains 
until  clearly  abandoned,  and  another  acquired;  and  so  each  successive  domi- 
cile continues  until  changed  by  the  acquisition  of  another,    lb. 


INDEX.  515 

Domicile —  Continued. 

4.  While  for  some  purposes  rhe  states  are  regarded  as  foreign  jurisdictions, 
the  principles  of  law  peculiar  to  foreign  domicile,  will  not  be  applied  in  a 
question  of  mere  inhabitancy  as  a  qualification  for  a  seat  in  the  Senate  under 
the  Constitution.    lb. 

5.  The  question  of  domicile  is  a  question  of  fact,  and  the  intention  is  evi- 
dence of  the  fact,  but  not  conclusive ;  for,  to  make  domicile,  both  fact  and 
intent  must  concur.     Kitig  v.  Park,  155. 

6.  The  place  where  a  married  man's  familj'  reside  is  generallj-  to  be  deemed 
his  domicile,  and  if  his  family  reside  in  one  place,  and  he  does  business  in 
another,  the  presumption  is,  that  the  former  place,  as  a  rule,  is  his  domicile. 
lb. 

7.  The  test  of  domicile,  to  determine  whether  a  person  has  left  a  former 
domicile,  and  gained  a  new  one,  is  his  intention,  as  gathered  from  all  the  fivcts 
in  the  case,  not  only  from  his  mere  declarations  of  intention,  but  also  from  all 
the  attendant  circumstances.  The  mere  fact  of  removal,  in  itself,  is  of  little 
weight,  to  show  that  the  domicile  has  been  changed ;  as,  when  a  man  has  once 
acquired  a  domicile,  the  fact  of  changing  his  residence,  and  the  intention  of 
remaining  in  the  new  residence,  must  both  concur,  in  order  to  establish  a  new 
home.    Keith  v.  Mayheic,  239. 

8.  A  person  is  an  inhabitant,  within  the  meaning  of  the  Constitution,  in 
prescribing  the  qualifications  of  members  of  the  legislature,  of  that  place 
where  he  actually  dwells,  or  has  his  home;  and  whether  he  intends  so  or  not, 
he  cannot  have  a  domicile,  for  political  purposes,  in  one  place,  and  his  actual 
home  in  another  place.    Jenkins  v.  Shaw,  266. 

9.  If  a  person  leaves  one  place  of  residence,  and  becomes  an  actual  resi- 
dent in  another  place,  and  such  latter  residence  is  not,  in  fact,  temporary,  the 
latter  place  becomes  his  domicile,  and  his  political  rights  and  duties  attach 
to  him  there,  whether  he  so  intends  or  not.    lb. 

10.  A  change  of  domicile  does  not  depend  so  much  upon  the  intention  to 
remain  in  the  new  place,  for  a  definite  or  indefinite  period,  as  upon  the  fact 
that  it  is  without  a  definite  intention  to  return ;  and  even  an  intention  to  re- 
turn, at  a  remote  or  indefinite  period,  may  be  controlled  by  other  circum- 
stances, establishing  the  fact  of  domicile  in  the  new  place.    lb. 

11.  The  intention  to  remain,  is  to  be  distinguished  from  mere  declaration 
of  such  intention ;  as  intention  is  a  fact  to  be  proved  by  evidence,  but  declara- 
tion of  intention  is  merely  evidence  tending  to  prove  such  fact,  liable  always 
to  be  controlled  by  other  evidence,  and  being  but  one  element  in  determining 
the  fact,  and  where  the  acts  of  the  person  are  inconsistent  with  his  declara- 
tion, the  intention  must  be  ascertained,  as  a  fact,  upon  the  whole  evidence,  lb. 

12.  The  provisions  of  the  Constitution  requiring  every  representative  to 
have  been  for  one  year  at  least  next  preceding  his  election,  an  inhabitant  of 
the  district  for  which  he  is  chosen,  is  satisfied  by  his  having  dwelt  or  had  his 
home  within  the  district  for  that  time;  —  and  a  person  otherwise  qualified, 
who,  having  been  alien,  has  been  naturalized  within  the  year,  is  eligible  as  a 
representative.     Opinion  of  Justices,  435. 

Particular  Cases. 

13.  Upon  the  question  whether  a  person  elected  senator,  Jan.  11,  1853,  had 
been  an  inhabitant  of  the  Commonwealth  for  the  space  of  five  years  imme- 
diately preceding  the  election,  it  appeared  that  he  was  born  and  had  lived 
with  his  parents  in  Haverhill,  Massachusetts;  that  after  leaving  college,  he 
returned  there  and  studied  law ;  after  completing  his  legal  studies,  he  removed 
to  Michigan,  where  he  was  admitted  to  the  bar  and  remained  about  ten  years, 
visiting,  with  his  wife,  his  father  in  Haverhill  as  often  as  every  other  year. 


516  INDEX. 

Domicile  —  Continued. 

In  1847,  during  onn  of  these  visits,  he  expressed  an  intention  of  living  East, 
as  soon  as  he  could  make  arrangements,  without  expressly  stating  in  what 
place,  and  inquired  about  a  law  office,  lie  then  returned  with  his  wife  to 
Michigan,  and  in  the  winter  of  1817-8,  wrote  to  his  relatives  of  his  intention 
to  leave  Michigan,  and  they  expected  him  in  Haverhill,  without  knowing  the 
probable  time  of  his  arrival,  lie  sold  his  real  estate  in  Michigan  in  January, 
1848,  and  arrived  in  Haverhill  towards  the  end  of  May,  I.SIS,  with  his  wife, 
where  he  joined  liis  mother's  family,  and  continued  to  reside  with  her  to  the 
time  of  election.  lie  rented  an  oflice  in  Haverhill  Nov.  28,  1848,  and  contin- 
ued to  occupy  it.  It  was  held  that  on  Jan.  11,  1813,  he  was  not  an  inhaljitant 
of  the  Commonwealth,  and  therefore  was  ineligible  to  election  as  senator, 
Jan.  11,  1853.     Ordway  v.  IIoicc,  3. 

14.  Where  a  representative,  who  was  at  the  time  of  election  a  minister 
settled  in  Blackstone,  from  which  town  he  was  elected,  accei)ted,  after  taking 
his  seat,  a  call  to  a  church  in  Somcrsworth,  New  Hampshire,  agreeing  to 
commence  his  services  as  pastor  the  following  April,  and  to  preach  himself  or 
supply  the  pulpit  there  until  then,  —  preaching  there  the  first  Sunday  in  April, 
from  which  date  his  salary  commenced,  —  having  dissolved  his  pastoral  rela- 
tions in  Blackstone  in  March,  and  leased  Iiis  house  there  to  his  successor,  and 
hired  a  house  in  Somcrsworth  to  which  he  subsequently  removed  his  house- 
hold fin-nitiirc  and  jiersonal  effects,  — remaining  himself  with  his  wife  and  one 
of  his  children  in  temporary  quarters  in  Boston,  spending  part  of  his  time  in 
Somerswortli  and  other  places,  intending  to  make  his  home  in  Someiswurth 
as  soon  as  the  legislature  adjourned,  although  wishing  to  do  nothing  to  affect 
his  right  to  retain  his  seat  as  representative,— and  with  that  desire  stipulat- 
ing that  he  was  not  to  assume  his  pastoral  duties  in  Somcrsworth,  beyond 
supplying  the  pulpit,  until  the  legislature  adjourned,  — it  was  held  that  ho  had 
ceased  to  be  an  inhabitant  of  Blackstone,  and  his  seat  should  be  declared 
vacated.    In  re  Steere,  20. 

15.  Upon  the  issue  whether  the  returned  member  had  been  an  inhabitant 
of  Boston  for  one  year  previous  to  the  election,  November  G,  185.1,  so  as  to 
be  eligible  to  election,  it  appeared  that  he  hud  lived  in  his  own  house  in  Cam- 
bridge for  some  years  previous  to  1854,  doing  business  in  Boston,  and  con- 
tinued to  reside  there  until  August  14,  1854,  when  he  commenced  boarding  at 
the  Quincy  House,  Boston,  leaving  his  furniture  in  his  house  in  Cambridge, 
and  continued  to  board  at  the  Quincy  House,  paying  Ijy  the  day  for  a  month. 
His  family  in  the  meantime  visited  in  the  country.  During  his  stay  at  the 
Quincy  House  and  at  other  times,  he  tried  to  find  a  house  in  Boston,  and  ex- 
pressed an  intention  of  moving  there,  if  he  could  succeed,  and  not  to  return  to 
Cambridge  if  ho  could  help  it.  In  September  his  family  returned  to  the  house 
in  Cambridge  and  ho  joined  them  there,  continuing  to  live  there  until  March 
or  April,  1855,  when  he  removed  to  Boston.  It  was  held  that  he  was  not  a 
resident  of  Boston  for  one  year  next  preceding  his  election  and  was  ineligible. 
Hinks  V.  Jones,  27. 

16.  A  person,  who  had  lived  and  voted  in  Weston,  acting  as  teller  in  a  bank 
in  Waltham,  married  in  Weston  in  June  preceding  the  election,  and  boarded 
there  with  his  father-in-law  until  the  week  of  the  election.  During  the  sum- 
mer he  had  agreed  to  take  a  house  in  Waltham  when  completed,  but  for  no 
definite  length  of  time,  the  house  to  be  ready  in  October  or  November.  Upon 
the  completion  of  the  house  in  November,  he  began  moving  into  it  on  Thursday 
and  Friday  before  the  election,  and  with  his  wife  spent  the  night  there,  ami 
also  the  night  of  the  election.  Ho  intended  to  reserve  the  right  of  voting  in 
Weston,  —  and  left  some  clothing  and  furniture  there,  and  got  his  provisk)ns 
and  had  his  washing  done  there,  until  after  the  election.  He  had  an  :inder- 
standiug  with  his  father-in-law  that  he  could  return  to  Weston  whenever  ho 


INDEX.  517 

Domicile  —  Continued. 

desired,  and  should  make  it  his  summer  residence,  and  never  had  any  definite 
intention  of  making  a  permanent  residence  in  Waltham.  It  was  held  by  a 
majority  of  the  committee  (four),  that  at  the  time  of  the  election  he  resided 
in  Weston,  and  was  qualified  to  vote  there, — and  by  the  minority  of  the  com- 
mittee (three),  that  he  had  removed  his  residence  to  Waltham,  and  was  not 
qualified  to  vote  in  Weston.    Pierce  v.  Brown,  92. 

17.  Upon  the  question  whether  a  senator,  returned  as  elected  in  1865,  had 
been  an  inhabitant  of  the  Commonwealth  for  the  space  of  five  years  imme- 
diately preceding  his  election,  it  appeared  that  he  was  born  and  brouglit  up  in 
Shclburne,  Massachusetts.  About  1854  he  went  to  New  Jersey  and  remained 
there,  teaching  school  for  about  two  years.  He  then  went  to  Illinois,  where 
he  lived  until  1863,  marrying  and  having  children  there;  being  commissioned 
a  justice  of  the  peace  fur  four  years  from  April,  1857,  and  serving  as  a  com- 
missioned officer  in  the  army  from  that  State  in  the  war.  He  returned  with 
his  family  to  Shelburne  in  1863,  in  which  year  his  name  first  appeared  upon 
the  voting  list  there,  being  assessed  and  paying  his  first  tax  there  in  1864,  and 
continuing  to  reside  there.  It  was  held  that  he  had  not  been  an  inhabitant  of 
the  Commonwealth  for  such  space  of  five  years  and  was  ineligible  to  election. 
Field  V.  IVilder,  103. 

18.  Upon  the  issue  whether  the  representative  returned  as  elected  from 
East  Boston,  had  been  an  inhabitant  of  the  district  for  one  year  next  preced- 
ing his  election  in  November,  1865,  it  appeared  that  he  had  formerly  resided 
in  Boston,  was  in  the  army  in  1861,  returned  to  Boston  in  1862,  living  with  his 
father  in  ward  3,  or  boarding  in  wards  5  or  7,  until  the  summer  of  1864. 
In  August  of  that  year  he  tried  to  get  a  house  in  East  Boston,  and  found 
a  boarding  place  there  into  which  he  was  about  to  move,  when  prevented  by 
the  closing  of  the  house  by  the  landlady.  lie  afterwards  made  other  efforts 
to  get  a  place  in  East  Boston,  intending  to  live  there,  but  continuing  to  board 
with  his  wife  in  ward  7,  until  early  in  January,  1865,  when  he  found  and 
took  a  house  in  East  Boston,  in  which  he  resided  from  that  time.  It  was  held 
that  he  had  not  been  an  inhabitant  of  East  Boston  for  one  year  next  preceding 
bis  election,  and  was  ineligible.    Pease  v.  Rowell,  108. 

19.  Upon  the  question  whether  a  senator  had  been  an  inhabitant  of  the 
Commonwealth  for  the  space  of  five  years  immediately  preceding  the  election 
(Nov.  5,  1867),  it  appeared  that  he  was  born  in  Maine,  and  came  to  Massachu- 
setts in  September,  1862,  where  he  entered  the  law  school  in  Cambridge,  his 
name  being  catalogued  as  of  Maine.  At  the  time  he  was  under  age,  but 
had  obtained  his  freedom  from  his  father,  and  brought  all  his  cfTects  with 
him,  intending  to  live  and  practise  law  in  Massachusetts.  He  was  admitted  to 
the  b':ir  there,  Nov.  1,  1862,  upon  his  petition,  in  which  he  stated  he  was  a  citi- 
zen of  that  Commonwealth.  In  February  or  March,  1864,  he  went  to  Gray, 
Me  ,  and  remained  there  until  the  following  October,  teaching  school  and 
opening  an  office  for  the  practice  of  law;  boarding  at  a  hotel,  and  leaving  all 
his  ix?rsonal  effects,  except  those  needed  for  use,  in  Boston.  He  was  elected 
a  member  of  the  school  committee  in  Gray,  soon  after  his  arrival,  the  claim 
being  made  that  citizenship  there  was  not  a  necessary  qualification  for  that 
office.  He  paid  a  tax  there  under  protest  that  he  was  not  liable.  He  fur- 
nished in  Portland,  not  supposing  it  affected  his  domicile,  a  substitute  in  the 
army,  which  was  credited  to  Gray,  and  for  which  that  town  voted  $50.  He 
voted  in^Gray  in  1864,  under  the  belief  that  he  could  do  so  while  still  retaining 
his  domicile  in  Massachusetts.  He  intended  all  the  time  to  return  to  Boston 
to  practice  law,  was  waiting  for  a  promised  position  in  a  law  office  there,  and 
returned  to  Boston  as  soon  as  he  obtained  it.  It  was  held,  under  the  circum- 
stances, that  he  had  been  an  inhabitant  of  the  Commonwealth  for  such  space 
of  five  years  and  was  eligible  to  election.     Wait  v.  Ingalls,  133. 


518  INDEX. 

Domicile  —  Continued. 

20.  Where  a  voter,  who  was  a  school  teacher  in  Middleborough,  notifieil 
the  school  committee  in  July,  1867,  that  he  should  not  remain  longer  unless 
his  salary  was  raised,  and,  upon  a  refusal  to  raise  it,  had  a  farewell  gathering 
and  took  formal  leave  of  his  pupils  and  went  to  Maine,  where  he  arranged  to 
enter  a  lawyer's  office,  and  in  the  latter  part  of  August,  upon  invitation  from 
the  school  committee,  who  had  been  unable  to  find  a  teacher  to  supply  his 
place,  returned  to  Middleborough,  having  obtained  a  release  from  his  em- 
ployer, and  resumed  his  school  there,  —  it  was  eld  that  by  his  removal  to 
Maine  he  changed  his  residence  and  was  not  entitled  to  vote  at  the  election  of, 
1867.     Shaw  v.  Abbott,  139. 

21.  Where  a  voter  had  lived  in  the  town  with  his  father,  owning  real  estate 
there,  went  to  New  York  in  the  fall  of  1835  to  engage  in  business,  intending 
to  remain  as  long  as  business  was  good,  and  was  called  back  by  the  illness  of 
his  father  in  June,  1867,  it  was  held,  upon  his  statement,  that  he  had  no  inten- 
tion of  changing  his  home,  but  intended  to  return,  that  he  was  a  resident,  and 
qualified  to  vote  at  the  election  of  1867.     lb. 

22.  Where  a  voter,  who  had  been  living  with  his  wife  at  his  father's  house 
in  Middleborough,  went  to  Hudson  in  the  fall  of  1866  to  get  work,  and  stayed 
there  eight  months  with  his  wife,  boarding  for  a  time  and  afterwards  keeping 
house,  paying  his  tax  in  Hudson  for  1867,  but  not  intending,  as  he  said,  to 
make  his  home  there,  but  to  stay  there  while  he  could  get  work,  and  returned 
to  Middleborough  in  June,  1867,  it  was  held  that  he  was  not  qualified  to  vote 
in  Middleborough  at  the  election  of  1867.    lb. 

23.  Upon  the  question  whether  a  senator  was  at  the  time  of  election  in  1870 
an  inhabitant  of  the  district,  it  appeared  that  he  had  formerly  resided  with  his 
family  in  the  district;  that  in  1835  he  moved  his  family  to  his  house  in  Hull 
and  remained  there  eight  months,  when  he  sold  his  house  there  and  X'emoved 
his  family  to  a  house  owned  by  him  in  Roxbury,  where  they  remained  until 
1867,  when  he  purchased  a  house  in  Melrose  and  removed  his  family  there, 
where  they  remained  until  June,  1870,  when  he  bought  a  house  in  Boston,  out 
of  the  district,  into  which  he  moved  his  family,  and  where  they  continued  to 
reside,  and  where  he  slept  once  or  twice  a  week;  during  these  years  he  was 
proprietor  of  a  hotel  in  the  district,  in  which  he  had  apartments,  kept  his 
clothes  and  usually  slept,  his  wife  occasionally  staying  there  with  him ;  he 
paid  three  poll  taxes  in  Melrose  under  objection  that  he  lived  in  Boston,  did 
not  vote  in  Melrose,  and  paid  these  taxes  only  because  it  was  cheaper  than  the 
cost  of  getting  rid  of  them ;  he  also  paid  personal  taxes  in  Boston  and  always 
voted  there ;  he  testified  that  he  resided  and  always  intended  to  reside  at  his 
hotel;  it  was  held  by  a  majority  of  the  committee  (three),  that  he  was  not  an 
inhabitant  of  the  district  at  the  time  of  election,  —  but  a  minority  of  the  com- 
mittee (two)  held  that  he  was  an  inhabitant,  and  the  minority  report  was  sus- 
tained by  the  senate.    King  v.  Park,  155. 

24.  On  the  question,  whether  a  person  elected  senator  had  been  an  inhabi- 
tant of  the  Commonwealth  for  the  space  of  five  years  immediately  preced- 
ing the  election,  in  November,  1875,  it  appeared  that  he  was  born  in  Charlc- 
mont,  and  had  resided  there,  with  his  wife  and  daughter,  and  two  sisters 
of  his  wife,  occupying,  for  some  years,  the  homestead  of  his  f;ither-in-law, 
owned  by  his  wife  and  her  sisters,  until  the  summer  of  1870;  he  then  formed 
a  partnership  with  a  resident  of  Rockville,  Conn.,  for  one  year,  in  the  clothing 
business,  in  that  place,  and  dissolved  his  former  partnership  in  Massachusetts, 
with  the  agreement  that  he  could  renew  it  at  the  end  of  the  year;  he  went  to 
Rockville,  boarding  there,  with  his  brother-in-law,  for  a  while,  and  afterwards 
bought  a  house,  into  which  he  moved  his  wife  and  daughter  in  January,  1871 ; 
he  left  his  wife's  sisters  in  the  house  in  Charlemont,  paying  the  household  ex- 
penses, and  retaining  his  pew  in  that  place;  in  January,  1870,  1871  and  1872, 


INDEX.  519 

Domicile  —  Continued. 

he  was  elected  a  director  in  the  Shelburne  Falls  National  Bank,  making  oath, 
each  time,  that  he  was  a  resident  of  Massachusetts ;  he  was  assessed  and  paid 
a  tax  upon  his  house  and  personal  property,  in  Rockville,  for  1871,  supposing 
that  persons,  even  if  non-residents,  were  liable  to  such  taxation;  his  name 
was  never  on  the  list  of  voters  in  Rockville;  he  remained  in  Rockville  over 
the  year,  but  closed  his  business  in  December,  1871,  sold  his  house  there,  and 
soon  afterwards  returned,  with  his  family,  to  Charlemont,  and  renewed  his 
former  partnership ;  he  repeatedly  declared  that  he  did  not  intend  to  live 
in  Connecticut,  and  went  there  only  temporarily,  intending  to  return  to  Charle- 
mont, which  .place  he  always  considered  his  home;  it  was  Ae/d  that  he  had 
not  lost  his  domicile  in  Charlemont,  but  had  been,  for  five  years  previous  to 
the  election,  an  inhabitant  of  Massachusetts,  and  was  eligible  to  election  as 
senator.     Keith  v.  Mayheio,  239. 

25.  Where  a  person  removed  his  family,  in  1867,  from  ward  5,  Boston, 
from  which  ward  he  was  elected  a  representative  in  1875,  and  lived  in  Brook- 
line,  Mass.,  with  relatives,  for  six  years,  and  afterwards  stayed  for  a  time  in 
Melrose,  and  from  June,  1874,  lived  continuously,  with  his  family,  in  a  house 
in  Dorchester,  leased  by  his  mother-in-law,  although  he  always  intended  to 
retain  his  domicile  in  ward  5,  for  political  purposes,  and,  to  carry  out  this  in- 
tention, slept  in  a  hotel,  or  lodging-house  there,  April  30,  1874,  and  occasion- 
ally after  that,  leaving  a  portmanteau  there  for  some  months,  and  had  himself 
assessed,  and  his  name  placed  on  the  voting  list,  in  that  ward,  and  on  April 
30,  1875,  again  slept  in  that  house,  saying  to  the  landlord  that  he  intended  to 
continue  his  residence  there,  and  in  June,  1875,  took  a  room  in  another  place 
in  that  ward,  retaining  the  key,  but  keeping  no  luggage  or  effects  in  it,  and  not 
occupying  it  for  more  than  one  or  two  nights,  —it  was  ^eWthat  he  had  ceased 
to  be  an  inhabitant  of  that  ward,  and  was  ineligible  to  election  from  it.  Jen- 
kins v.  Shaio,  266. 

26.  A  representative,  who  was  born,  always  lived,  been  assessed,  and  voted, 
in  the  town  from  which  he  was  elected,  owning  and  occupying,  with  his 
family,  a  home  there,  from  which  he  had  no  intention  of  removing,  but  always 
considered  it  his  home,  will  not  be  held  to  have  changed  his  domicile,  and 
become  ineligible  to  election,  because  for  two  winters  he  has,  with  his  family, 
lived  in  a  house  in  Boston,  belonging  to  his  wife  and  her  brother,  and,  during 
his  stay,  has  kept  house  there  with  his  brother-in-law.  Merriam  v.  Batchelder, 
294. 

27.  Where  the  representative  returned  had  lived,  with  his  family,  in  a  tene- 
ment over  a  store  owned  by  him  in  the  district,  and,  in  July  previous  to  his 
election,  had  moved  his  family  and  furniture  into  a  house  owned  by  him  in 
the  country,  outside  the  district,  moving  there  on  account  of  the  health  of  his 
family,  letting  his  former  tenement,  but  with  the  right  to  resume  it  in  the  fall, 
remaining  in  the  country  until  the  last  of  October,  when  he  returned,  with  his 
family,  and  occupied  another  tenement  in  the  same  building,  never  intending 
to  change  his  residence,  but  merely  to  spend  the  summer  in  the  country,  it  was 
held,  that  he  remained  an  inhabitant  of  the  district  from  which  he  was  elected, 
and  was  eligible  to  election.    Scribner  v.  Keyes,  296. 

28.  Where  the  member  returned  as  elected  in  1876,  had  lived  some  years  in 
the  district,  and,  upon  the  burning  of  his  house  in  November,  1875,  took  board 
in  a  house  out  of  the  district,  but  soon  after  the  fire  made  preparations  to 
rebuild,  the  work  continuing  to  the  time  of  the  election,  and  always  intended 
to  live  in  the  house  when  completed,  it  was  held,  that  he  continued  an  inhabi- 
tant of  the  district  and  was  eligible  to  election.    Prescott  v.  Grossman,  303. 

29.  A  person  unmarried,  born  and  brought  up  in  Franklin,  residing  there 
with  his  parents  until  May,  1879,  then  going  to  work  in  Hopkinton,  remaining 
there,  except  for  the  period  from  November.  1879,  to  February,  1880,  which 


520  INDEX. 

Domicile  —  Concluded. 

period  he  spent  with  his  parents  in  Franklin,  being  taxed  in  both  towns  in 
May,  1880,  but  asking  for  an  abatement  in  Hopkinton  on  the  ground  that  he 
was  taxed  in  Franklin  and  wanted  to  retain  his  home  there,  because  for  part 
of  the  year  he  was  without  work  in  Hopkinton,  paying  his  tax  there  only  upon 
a  tax  warrant  against  him,  and  getting  it  abated  after  the  election,  paying  his 
tax  in  Franklin,  was  not  a  resident  of  Hopkinton  qualified  to  vote  there  in  the 
election  of  1880.     Claflin  v.  Wood,  353. 

30.  A  citizen  of  Massachusetts,  removing  with  his  family  to  another  State, 
and  retaining  no  dwclling-placs  in  Massachusetts,  though  retaining  his  place 
of  business  here,  and  intending  to  retain  his  domicile  here,  and  to  return  at 
some  futui-e  indefinite  period  of  time,  has  no  domicile  in  Massachusetts. 
Holmes  v.  Greene  (Sup.  Jud.  Court),  407. 

Evidence  on  Domicile. 

31.  Less  evidence  is  necessary  to  establish  the  intention  of  remaining, 
where  the  person  returns  to  his  former  domicile,  than  where  he  is  remaining 
in  a  new  place.     Ordway  v.  Howe,  3. 

32.  There  are  two  classes  of  evidence,  by  which  to  prove  this  intention  of 
remaining :  j?r«<,  the  facts  and  circumstances  of  the  case;  and,  second,  the 
declarations  of  the  party,  — not  only  those  made  at  the  trial,  but  those  previ- 
ously made  by  him  to  third  parties.    Keith  v.  Mayheic,  239. 

33.  Such  declarations,  wliile  entitled  to  their  fall  weight,  as  competent  evi- 
dence, are  not  conclusive,  but  the  acts  of  the  party  must  also  be  considered ; 
for  his  intention  is  not  merely  what  he  may  say,  or  believe,  but  a  legal  fact, 
to  be  proved  by  his  acts  and  declarations,    lb. 

And  to  same  effect,  see  Jenkins  v.  Shaio,  266. 

34.  The  fact  that  a  person  is  assessed,  as  resident  of  a  wai'd,  is  entitled  to 
little,  if  any,  weight,  on  the  question  of  his  i-esidence,  where  the  assessors  are 
accustomed  to  assess  persons  as  residents  of  the  ward  in  which  they  claim  to 
reside,  or  in  which  the  assessors  are  told  such  persons  reside,  and  to  make  no 
further  inquiry  as  to  their  residence.    Jenkins  v.  Shaic,  266. 

35.  In  an  action  against  the  selectmen  of  a  town  for  refusing  to  put  the 
plaintiflF's  name  upon  the  list  of  voters,  and  rejecting  his  vote,  the  plaintiff 
may  prove  his  own  statements  relating  to  his  residence,  made  to  the  selectmen 
before  offering  his  vote,  not  under  oath,  for  the  purpose  of  furnishing  to  them 
evidence  of  his  having  the  legal  qualifications  of  a  voter;  and  he  may  testify 
to  his  own  intention  in  leaving  the  town  for  a  prolonged  absence,  previously 
to  the  time  of  the  acts  complained  of.    Lombard  v.  Oliver  (Sup.  Jud.  Ct.),  425. 

Representative  in  Congress. 

36.  A  person  to  be  eligible  to  election  as  a  representative  in  Congress  need 
not  reside  in  the  district  from  which  he  is  elected.  Gov.  Andrew's  Veto  Mes- 
sage, 495. 

For  decisions  of  the  Supreme  Judicial  Court  upon  all  questions  of  domicile 
contained  in  1  Mass.  to  138  Mass.  Reps.,  inclusive,  see  Digest  of  Massachu- 
setts cases,  pp.  473-494. 

DOUBLE  VOTING. 

See  Votes,  1,  2,  3. 

ELECTION. 

Effect  of  Irregularities. 

1.  Placing  names  upon  the  voting  list  in  pencil  after  the  polls  were  opened, 
in  many  cases  with  no  other  proof  of  the  voter's  qualification  than  his  pre- 
sentation of  a  tax  receipt,  examined  and  passed  upon  by  a  single  selectman ; 
receiving  votes  upon  the  mere  showing  of  a  tax  receipt,  and  then  entering  and 


INDEX.  521 

Election  —  Cmitinued. 

checking  the  name  on  the  voting  list;  allowing  four-fifths  of  the  votes  to  lie 
counted  and  certified  by  four  citizens  of  the  town,  invited  to  that  service  by 
the  selectmen,  but  not  ofBcers  or  sworn;  allowing  a  citizen,  not  an  officer  or 
sworn,  to  preside  over,  and  check  names  upon,  and  add  names  to,  one  of  the 
tliree  voting  lists,  were  irregularities  reported  for  the  action  of  the  liou.'<e ;  but 
as,  even  if  the  vote  of  the  town  in  which  these  irregularities  occurred  was 
thrown  out,  the  sitting  member  would  still  have  a  plurality,  the  committee 
expressed  no  opinion  upon  the  question,  and  reported  that  the  petitioner  have 
leave  to  withdraw.    Arnold  v.  Champney,  121. 

2.  Mere  irregularities  in  the  conduct  of  the  election,  in  the  absence  of  fraud, 
or  proof  that  the  result  was  affected  will  not  invalidate  the  election.  French 
V.  Bacon,  184. 

3.  Where,  in  such  town,  the  record  did  not  state  the  whole  number  of  votes 
given  for  any  officer  voted  for;  where  the  number  of  votes  recorded  did  not 
correspond  with  the  number  of  names  checked  on  the  voting  list ;  where  it 
was  uncertain  how  many  of  the  selectmen  participated  in  counting  the  votes  ; 
where  there  was  evidence  from  bystanders  (legal  voters),  who  overlooked  the 
count,  that  they  saw  enough  more  votes  cast  for  the  petitioner  than  were 
counted  for  him  to  change  the  declared  result,  and  verified  the  fact  by  going 
to  the  poll-room  the  morning  after  election  and  finding  the  votes  unsealed, 
recounted  them  ;  where  depositions  of  persons  equal  in  number  to  the  number 
of  votes  found  by  this  recount  to  have  been  cast  for  the  petitioner,  to  the  effect 
that  they  voted  for  the  petitioner,  were  offered  in  evidence ;  and  where  the 
votes  cast  were  not  preserved  as  required  by  law,  —  it  was  held  by  a  majority 
of  the  committee,  that  the  election  in  that  town  was  void,  and,  by  the  house  of 
representatives,  that  the  election  in  the  district  was  void.  Perry  v.  Montague, 
200. 

4.  Where  the  meeting  for  the  election  was  left  in  charge  of  the  town  clerk 
for  twenty  or  thirty  minutes,  while  all  the  selectmen  went  to  dinner,  there 
being  doubt  whether,  during  that  time,  one  person  voted,  and  where  during 
most  of  the  meeting,  but  one  of  the  selectmen  actually  officiated,  it  was  ques- 
tioned, whether  the  election  in  such  town  should  not  be  declared  void.    lb. 

5.  It  seems  that  in  a  representative  district  composed  of  five  towns,  if  the 
election  in  one  of  the  towns  is  void  for  uncertainty,  the  election  in  the  district 
should  be  set  aside.    lb. 

6.  The  f:\ct  that  the  number  of  ballots  did  not  exactly  correspond  with  the 
number  of  names  checked  on  the  voting  list;  that  persons,  whose  names  were 
checked,  were  denied  the  right  to  vote ;  that  persons  were,  after  refusal  to 
receive  their  votes,  allowed  to  vote  upon  presenting  written  statements  from 
the  registrars  of  voters  (it  not  appearing  what  such  statements  contained) ; 
that  a  person  not  an  election  officer  was  admitted  behind  the  rail  (it  not 
appearing  that  he  was  there  without  right,  or  for  an  improper  purpose),  are 
not  sufficient  to  prove  wilful  irregularity,  or  fraud  on  the  part  of  the  election 
officers,  or  to  avoid  the  election  return.    Barr,  Pet.  254. 

7.  Striking  names  from  the  voting  list,  without  proper  inquiry,  and  restor- 
ing them  to  the  list  by  one  selectman,  without  consultation  with  the  other 
selectmen,  and  without  proper  inquiry  into  the  qualifications  of  the  persons 
whose  names  are  so  restored,  are  serious  irregularities  in  the  conduct  of  the 
election ;  but,  upon  a  waiver  by  the  petitioner  of  any  right  to  the  seat,  based 
upon  the  illegality  of  the  vote  of  such  persons,  the  election  will  stand.  Ames 
V.  Becbe,  346. 

8.  The  fact  that  the  selectmen  of  a  town,  following  a  custom  which  had 
existed  for  three  or  four  years,  appointed  as  tellers  three  reputable  persons,  to 
sort  and  count  the  votes,  who,  without  being  sworn  performed  that  duty,  the 


522  INDEX. 

Election  —  Continued. 

selectmen  taking  no  part  in  the  count,  but  simply  accepting  the  result  as  cor- 
rect, will  not  invalidate  the  election  or  return  in  that  town.     Pease,  Pet.  374. 

9.  When  the  petitioner  was  declared  elected  upon  the  ward  retunis  by  a 
plurality  of  five  votes,  and,  upon  a  recount  by  the  aldermen,  the  sitting  mem- 
ber was  returned  by  a  plurality  of  five  votes,  —  and  the  committee  in  recount- 
ing the  votes  were  unable  from  irregularities  and  errors  on  the  face  of  many  of 
the  ballots  to  ascertain  how  the  aldermen  reached  that  result,  and  it  was 
proved  that  there  had  been  fraudulent  voting,  and  irregularities  at  the  election, 
so  that  it  was  impossible  to  determine  who  had  received  a  plurality  of  legal 
votes,  the  election  was  declared  void.    Splaine  v.  McGahey,  393. 

Result  Must  be  Affected. 

10.  The  fact  that  illegal  votes  were  deposited  in  a  ward,  but  not  counted, 
and  that  more  votes  were  cast  than  there  were  names  checked  on  the  voting 
list,  —  the  excess,  if  rejected,  being  insufficient  to  change  the  result,  —  will  not 
warrant  the  rejection  of  the  entire  ward  return,  or  the  avoidance  of  the  election 
in  that  ward.     King  v.  Park,  155. 

11.  The  ftict  that  there  were  repeating  and  fraudulent  voting,  and  irregu- 
larities, and  neglect  of  duty  on  the  part  of  the  ward  officers,  in  a  ward  forming 
part  of  the  senatorial  district,  will  not  justify  declaring  the  seat  of  the  returned 
senator  vacant,  in  the  absence  of  proof  that  such  fraud  or  irregularity  affected 
the  result  of  the  election.     Stimson  v.  Boardman,  171. 

12.  Where  a  vote  is  proved  to  have  been  illegal, -unless  such  vote  would 
affect  the  result  of  the  election,  it  is  unnecessary  to  inquire  for  whom  it  was 
cast.     Ordway  v.  Woodbury,  163 . 

13.  The  mere  fact  that  159  more  votes  were  returned  than  there  were  names 
checked  on  the  voting  list,  if  there  are  no  circumstances  corroborative  of  any 
presumption  of  fraud,  and  the  causes  which  produced  the  discrepancy  did  not 
afiect  the  result,  will  not  invalidate  the  election.    lb. 

New  Election. 

14.  Where  the  election  was  declared  to  have  resulted  in  a  tie  vote,  and  a 
new  election  was  held,  and  upon  a  recount  of  the  votes  at  the  first  election,  it 
was  found  that  a  person  had  received  a  plurality,  the  second  election  was  held 
void.     Lay,  Pet.  199. 

15.  If  an  election  is  reported  as  resulting  in  a  tic,  and  a  second  election  is 
held,  as  provided  by  the  Constitution,  in  cases  where  there  has  been  a  failure 
to  elect,  the  house  will,  upon  petition,  inquire  into  the  first  election,  and  upon 
proof  that,  at  such  election,  the  petitioner  received  a  plurality  of  the  votes,  the 
second  election  will  be  declared  invalid,  and  the  seat  given  to  the  petitioner. 
Shaw  V.  Buckminster ,  221. 

16.  Where  the  seat  of  a  member  has  been  declared  vacant,  and  since  the 
election,  a  new  division  of  wards  has  been  made,  and  the  authority  of  the  ward 
oflScers,  to  conduct  and  make  return  of  the  election  of  representatives,  has 
expired,  so  that  an  act  of  the  legislature  is  necessary,  to  provide  a  new  regis- 
tration of  voters,  a  polling  place,  and  election  officers,  which  must  postpone 
such  election,  until  near  the  end  of  the  session,  a  new  election  will  not  be 
ordered,  especially  where  the  district  continues  to  be  represented  by  two  of 
three  representatives  to  which  it  was  entitled.    Bowker,  Pet.  2S2. 

Motion  not  to  Elect. 

17.  A  motion  made  and  laid  on  the  table  of  the  selectmen,  at  a  town  meet- 
ing, that  the  town  do  not  proceed  to  the  choice  of  a  representative  at  this 
meeting  may  be  considered  as  waived,  if  subsequent  motions  are,  without 


INDEX.  523 

Election  —  Continued. 

objection,  made  and  acted  upon,  and  the  former  motion  is  not  renewed,  or  in 
any  way  called  up,  or  made  the  subject  of  remark.     Haws  v.  Darling,  18. 

18.  A  motion  not  to  send  a  representative,  properly  made  and  fairly 
adopted,  will  be  binding  upon  the  town.    Lynde,  Pet.  25. 

Notice  of  Meeting  fok  Election. 

19.  Where  it  was  the  usage  to  give  fourteen  days'  notice  of  a  town  meeting, 
—  if  such  notice  was  rendered  impossible  by  the  fact  that  the  mectmg  for  the 
election  of  representative  was  required  by  Article  10  of  the  Amendments  to 
the  Constitution  to  be  held  on  the  second  Monday  in  November,  and  failing  an 
election,  to  be  adjourned  to  the  next  day,  and  then,  failing  an  election,  another 
meeting  was  to  be  held  on  the  fourth  Monday  in  November,  —  it  was  held, 
that  eleven  days'  notice,  being  all  the  notice  possible,  was  sufficient.  Ilatcs  v. 
Darling,  18. 

20.  Omission  in  warrant  for  meeting  to  state  whether  votes  for  different 
officers  were  to  be  on  one  ballot  or  on  different  ballots,  will  not  affect  the 
election.     Penniman  v.  Prindle,  24. 

21.  The  fact  that  the  selectmen  of  a  town  failed  to  post  a  list  of  voters  prior 
to  an  election  as  provided  by  law,  in  the  absence  of  evidence  that  such  failure 
was  the  occasion  of  the  refusal  of  the  vote  of  any  person  who  had  the  right  to 
vote,  of  any  illegal, voting,  or  any  other  oppressive  result,  will  not  invalidate 
the  election.    Newcomb  v.  Holmes,  57. 

22.  Omission  in  the  warrant  for  the  town  meeting  for  the  election,  to  state 
the  time  when  the  polls  would  be  opened,  or  whether  persons  to  l)e  voted  for 
should  be  voted  for  on  one  ballot,  or  at  the  same  time  on  separate  ballots,  will 
not  affect  the  validity  of  the  election.     Tobeij  v.  King,  60. 

23.  An  election  will  not  be  set  aside  where  full  notice,  as  required  by  the 
vote  of  the  town,  has  been  given,  merely  because  such  notice  may  have  been 
served  by  a  person  who  was  not  de  jure  a  constable.     Bird  v.  Merrick,  115. 

24.  AVhere  the  town  of  Maynard  was  incorporated,  out  of  certain  territory 
in  the  towns  of  Stow  and  Sudbury,  under  an  act  providing  that  the  town,  for 
the  purpose  of  electing  representatives,  should,  for  a  certain  time,  remain  part 
of  said  latter  towns,  and  that  the  selectmen  of  Maynard  should  make  a  list  of 
voters,  and  post  it  in  Maynard,  and,  after  correcting  it,  as  required  by  law, 
should  deliver  the  list  of  the  voters,  qualified  to  vote  in  either  of  said  towns,  to 
the  selectmen  of  such  town  seven  days,  at  least,  before  the  election,  failure  on 
the  part  of  such  selectmen,  so  to  deliver  such  list,  until  the  day  before  the 
election,  although  such  a  neglect  caused  a  rumor  to  become  current  in 
Maynard,  that  none  of  its  inhabitants  would  be  allowed  to  vote  in  Sudbury, 
resulting  in  the  omission,  on  the  part  of  several  voters,  to  go  to  Sudbury  to 
vote,  other  inhabitants,  however,  going  there  and  voting,  will  not  invalidate 
the  election.     Harding,  Pet.  175. 

25.  Where  the  notice  of  the  meeting  for  the  election  was  irregularly  signed 
and  posted,  but  the  meeting  was  fairlj'  conducted  and  no  voter  deprived  of  any 
right,  or  stayed  away  from  the  polls  by  reason  of  the  informality,  it  was  held 
that  such  irregulai-ity  would  not  affect  the  election.    Hillman  v.  Flanders,  338. 

To  the  same  effect,  see  Commonwealth  v.  Smith  (Sup.  Jud.  Court),  461. 

26.  Informality  in  notice  of  meeting  for  general  election,  not  affecting  the 
result,  will  not  invalidate  the  election,  but  electors  must  have  in  law  or  fact 
knowledge  of  meeting  for  election.    Editorial  Note  to  Hillman  v.  Flanders,  343. 

27.  Notice  of  special  election  is  essential  to  its  validity.    lb.  344. 

For  balfbts,  erasure,  exposure  and  form  of,  in  elections,  see  Ballots. 
For  certificates  of  election,  see  Certificate. 


524  INDEX. 

Election  —  Concluded. 

For  corruption  in,  see  Bribery. 

For  count  of  votes  at,  see  Mistake  in  Count  of  Votes,  Recount  op 

Votes. 
For  duties  of  canvassing  board,  see  Canvassing  Board. 
For  duties  of  selectmen,  see  Selectmen. 
For  duties  of  town  clerks,  see  Clerks  of  Towns. 
For  election  of  councillor,  see  Councillor. 

For  election  of  ineligible  candidates,  see  Ineligible  Candidate. 
For  election  ofHcers,  see  Officer  de  facto.  Selectmen. 
For  election  returns,  see  Return  of  Votes. 
For  evidence  in  election  controversies,  see  Evidence. 
For  votes  in  envelopes,  see  Envelopes. 
For  fraud  and  illegal  voting,  see  Fraud. 
For  incorrect  and  informal  ballots  and  pasters,  see  Mistake  in    Name 

OF  Candidate,  Paster  on  Ballot 
For  qualification  of  voters,  see  Domicile,  Naturalization,  Pauper,  Tax. 
For  supervisors  of,  see  Supervisors  of  Election. 
For  double  voting  at,  see  Votes. 

ELECTION  OFFICERS. 

See  Officer  de  facto.  Selectmen.  ♦ 

ELECTORS. 

See  Voter. 

ELIGIBILITY  OF  SENATOR  OR  REPRESENTATIVE. 

See  Domicile,  Naturalization,  Ineligible  Candidate, 
Representative  in  the  Legislature,  2,  3. 

ENVELOPES,  VOTES  IN. 

1.  Section  2  of  chapter  36  of  the  Acts  of  1853  (substantially,  section  4  of 
chapter  7  of  the  Public  Statutes),  prescribing  the  kind  of  envelope  to  be  used 
at  elections,  and  providing  that  no  other  envelopes  shall  be  used  at  the  polls* 
is  not  merely  directory,  but  being  prohibitory  in  expression  and  effect,  is 
mandatory,  and  ballots  enclosed  in  envelopes  not  bearing  the  seal  of  the  Com- 
monwealth, should  not  be  counted.     Taf(  v.  Cole,  45. 

2.  Contra.  A  ballot  enclosed  in  a  colored  envelope,  not  of  the  kind  pre- 
scribed by  the  statute,  and  deposited  in  the  ballot-box,  without  challenge  or 
objection  from  the  election  officers,  or  notice  that  it  was  not  of  the  proper 
kind,  should  be  counted;  although  the  statute  (Pub.  Stat.,  chap.  7,  sect.  4), 
provides  that  no  other  envelope  than  those  prescribed  shall  be  used  at  the 
polls.     Whitaker  §  Cummings,  360,  and  Editorial  note,  363-366. 

ERASURE  ON  BALLOT. 

See  Ballot  1,  2,  3,  4,  5,  6,  7,  8,  9. 

ERROR  IN  COUNT  OF  VOTES. 

See  Mistake  in  Count  of  Votes,  Recount  of  Votes. 

EVIDENCE. 

Burden  of  Proof. 

1.  The  fact  that  a  person's  name  is  on  the  voting  list  when  the  meeting  is 
opened  and  the  voting  commences,  is  prima  facie  evidence  of  his  right  to 
vote.     Harris  v.  Whitcomb  (Sup.  Jud.  Ct.),  404. 

2.  Where  certain  names  on  the  voting  list  are  marked  with  a  sign  that  the 
persons  whose  names  are  so  marked  have  not  paid  the  reqvnred  tax,  under 
instructions  to  the  ward  officers  not  to  refuse  the  vote  of  any  person  whose 


INDEX.  525 


Evidence  —  Continued. 


name  is  so  marked,  but  to  challenge  it,  and  if,  after  such  notice,  the  voter 
insists  upon  voting  at  his  peril,  to  receive  the  vote,  the  burden  of  proof  is 
upon  the  person  contesting  the  legality  of  such  vote,  when  so  received,  to 
prove  that  such  voter  has  not  paid  the  required  tax.  Ordway  v.  Woodbury, 
163. 

3.  The  mere  fact  that  159  more  votes  were  returned  than  there  were  names 
checked  on  the  voting  list,  if  tiiere  are  no  circumstances  corroborative  of  any 
presumption  of  fraud,  and  the  causes  which  produced  the  discrepancy  did  not 
affect  the  result,  will  not  invalidate  the  election.    lb. 

4.  The  official  returns  of  an  election  are  prima  facie  correct,  and  the  bur- 
den of  proof  is  upon  the  petitioners,  to  show  fraud  or  mistake.  Barr,  Pet. 
254, 

5.  The  election  return  cannot  be  set  aside,  or  the  declared  result  of  the  elec- 
tion avoided,  by  proof  that  persons  entitled  to  vote  were  denied  the  right  to  do 
so,  unless  the  ward  officers,  in  denying  such  persons  the  right  to  vote,  acted 
dishonestly  or  collusively,  or  unless  it  he  proved,  that  such  votes  would  have 
l)een  cast  against  the  sitting  members,  and  would  have  changed  the  declan  d 
result,    lb.,  254. 

6.  The  return  cannot  be  set  aside,  or  the  declared  result  of  the  election 
avoided,  by  proof  that  votes  were  cast  by  persons  not  entitled  to  vote,  unless 
the  officers,  in  receiving  such  votes,  acted  dishonestly  or  collusively,  or  unless 
it  be  proved,  that  such  votes  were  cast  for  the  sitting  members,  and  that  the 
rejection  of  them  would  have  changed  the  declared  result.    lb.,  234. 

7.  AVhile  it  will  be  presumed  that  an  alien  born  person  voting  at  an  elec- 
tion has  been  naturalized,  the  presumption  is  overcome  by  proof  that  he  had 
not  been  in  the  country  the  required  length  of  time  to  be  entitled  to  natural- 
ization, neither  the  voter  himself  nor  his  certificate  of  naturalization  being 
produced  before  the  committee ;  and  his  vote  should  be  rejected.  Whitaker  ^ 
Cummings,  360. 

Depositions. 

8.  Where  the  petitioner,  to  prove  that  more  votes  were  cast  for  him,  in  a 
ward,  than  were  returned  for  him  by  the  election  officers,  presented  the  affida- 
vits of  thirty-nine  more  persons  than  there  were  votes  returned  for  him,  taken 
two  months  after  the  election,  each  person  swearing  that  he  voted  for  the  peti- 
tioner, it  was  held,  that  it  would  be  a  dangerous  precedent  to  unseat  a  member 
upon  such  affidavits  alone,  without  evidence  of  fraud  on  the  part  of  election 
officers,  but  such  affidavits  might  be  considered,  in  connection  with  other  evi- 
dence, tending  to  establish  fraud.     French  v.  Bacon,  184. 

9.  It  seems  that,  where  the  petitioner  notified  the  returned  member  of  his 
intention  to  contest  the  election,  and  also  notified  such  member  and  the  select- 
men of  the  town  that  he  intended  to  take  testimony  in  the  same,  at  a  time  and 
place  named,  to  prove  fraud  or  mistake  in  the  record  and  return  of  votes,  and 
requested  them  to  be  present  and  examine  the  witnesses,  if  they  desired,  the 
depositions  of  witnesses,  so  examined,  although  none  of  the  parties,  so  noti- 
fied, attended,  will  be  received  as  evidence,  with  the  same  effect  as  though 
taken  before  a  commissioner  duly  appointed  by  the  bouse.  Perry  v.  Mon- 
tague,  200. 

10.  Depositions  of  voters,  taken  without  proper  notice  to  the  opposite  party 
of  the  time  and  place  of  taking  them,  or  waiver  of  notice  upon  his  part,  arc 
inadmissible,  in  the  hearing  upon  a  controverted  election,  unices  taken  by  a 
commissioner  appointed  under  an  order  of  the  house.    Hood  v.  Potter,  217. 

Evidence  of  Citizenship. 

11.  Upon  the  question  whether  the  sitting  member  was  a  citizen,  evidence 
that  the  certificate  of  naturalization,  issued  by  a  competent  court,  was  obtained 


526  INDEX. 

Evidence  —  Continued. 

by  frauilulcnt  representations,  as  to  the  length  of  his  residence  inthiscountiy, 
is  incompetent.     Quirk  v.  McDonald,  229. 

12.  Where  the  representative  returned,  depended  for  eligibility  as  a  citizen, 
upon  the  naturalization  of  his  father,  while  he  was  a  minor,  it  Avas  held  that 
the  certificate  of  naturalization  issued  to  the  father  was  conclusive  upon  the 
question  whether  his  primary  declaration  was  made  in  a  court  of  competent 
jurisdiction.     Filkins  v.  Spillane,  331. 

13.  "While  it  will  be  presumed  that  an  alien  born  person,  voting  at  an  elec- 
tion, has  been  naturalized,  the  presumption  is  overcome  by  proof  that  he  had 
not  been  in  the  coi'atry  the  required  length  of  time  to  be  entitled  to  natural- 
ization, neither  the  voter  himself  nor  his  certificate  of  naturalization  l)eing 
produced  before  the  committee;  and  his  vote  should  be  rejected.  Cummings 
§  Whitaker,  360. 

Intention  of  Voter. 

14.  While  any  facts  may  be  given  in  evidence  tending  to  explain  the  inten- 
tion of  the  voter  regarding  his  vote,  and  his  own  testimony  as  to  such  facts 
may  be  received,  he  should  not  be  allowed  to  testify  for  whom  he  intended  to 
vote  by  his  ballot.     Wright  v.  Ilooper,  100. 

15.  Evidence  competent  to  show  for  whom  voter  intended  to  vote  in  casting 
an  imperfect  ballot.     Editorial  note  to  Wright  v.  Hooper,  106. 

16.  A  voter,  however,  will  not  be  allowed  to  testify  directly  for  what  person 
he  intended  his  vote  to  be  cast.     Hood  v.  Potter.  217. 

See  to  the  same  effect,  Baker  v.  Hunt,  378. 

Privilege  of  Secrest  in  Vote. 

17.  A  voter  cannot  be  compelled  to  disclose,  either  directly  or  indirectly, 
the  character  of  his  vote  when  voting  by  ballot,  and  he  cannot  be  required  to 
testify  before  the  committee  for  whom  he  voted  nor  to  what  party  he  belonged. 
Palmer  v.  Howe,  145.  * 

18.  Upon  the  question  for  whom  a  person  voted,  evidence  of  persons  see- 
ing the  ballot  cast,  statements  of  the  voter  to  other  persons  as  to  how  he  had 
voted,  and  evidence  that  the  voter  was  generally  reported  to  belong  to  a  cer- 
tain political  party,  were  admitted  as  competent.    1  b. 

19.  This  exemption  from  obligation  to  disclose  the  character  of  his  vote,  or 
for  whom  cast,  is  a  personal  privilege  which  can  be  claimed  only  by  the  voter 
himself,  and  the  question  can  therefore  be  put  to  the  witness,  and  if  he  sees 
fit  to  answer,  there  is  no  objection  to  the  testimony.    lb. 

20.  Qualified  voter  need  not  disclose  for  whom  he  voted;  nor  can  others 
disclose  without  his  consent;  —  privilege  can  be  waived  by  voter;  —  privilege 
does  not  extend  to  persons  voting  illegally ;  evidence  admissible  to  show  how 
unqualified  voter  voted.    Editorial  note  to  Palmer  v.  Hoioe,  149-151. 

21.  A  voter  cannot  he  compelled  to  state  for  whom  he  voted,  bat  his  decla- 
ration to  others,  as  to  how  he  voted,  is  competent  evidence.  Davis  v.  Murphy, 
J  77. 

Voting  List. 

22.  Where  the  petitioner  claimed  that  persons  were  allowed  to  vote  upon 
the  names  of  other  voters,  and  supported  his  claim  by  the  evidence  of  a  num- 
ber of  persons,  that  they  had  not  voted  at  the  election,  copies  of  the  voting 
list,  made  by  the  clerks  of  the  petitioner,  cannot  be  received  for  the  purpose  of 
showing  that  the  names  of  such  persons  were  checked  as  having  voted,  al- 
though the  checks  on  the  original  voting-list,  used  at  the  election,  had  been 
erased  for  the  purpose  of  using  the  list  at  the  subsequent  municipal  election. 
Stimson  v.  Boardman,  171. 


ij^DEx.  527 

Evidence  —  Concluded. 

23.  The  fact  that  a  person's  name  is  on  the  recrister  of  voters  in  a  town  is 
not  conclusive  that  such  person  is  a  qualified  voter  in  such  town,  but  in  an 
election  controversy  his  qualifications  can  be  inquired  into  by  the  house  of 
representatives,  and  if  found  unqualified,  his  vote  will  be  rejected.  Claflin  v. 
Wood,  353. 

24.  In  an  action  against  selectmen  for  refusing  to  receive  the  plaintiff's 
vote,  evidence  that  his  name  was  on  the  voting  list  is  inadmissible  without  first 
giving  notice  to  produce  the  list.     Harris  v.  Whitcomb  (Sup.  Jud.  Ct.),  401. 

25.  No  action  lies  against  the  selectmen  of  a  town  for  refusing  to  put  upon 
the  list  of  voters  therein  the  name,  and  rejecting  the  vote,  of  one  who  was  not 
a  legal  voter,  although  the  proof  produced  by  him  to  them  was  sufficient  to 
establish,  prhna  facie,  his  right  to  vote ;  and  they  may  prove  at  the  trial  that 
in  fact  he  was  not  a  legal  voter.    Lombard  v.  Oliver  (Sup.  Jud.  Ct.),  422. 

For  evidence  in  questions  of  inhabitancy  and  residence,  see  Domicile,  31, 
32,  33,  34,  35. 

EXAMINERS,  BOARD   OF. 

See  Canvassing  Board. 

EXPOSURE  OF  BALLOTS. 

See  Ballots,  10,  11,  12,  13. 

FAILURE   OF  CLERKS  TO  MEET. 

See  Clerks,  1,  2,  3,  4. 

FRAUD   AND   ILLEGAL  VOTING. 

1.  The  fact  that  illegal  votes  were  deposited  in  a  ward,  but  not  counted, 
and  that  more  votes  were  cast  than  there  were  names  checked  on  the  voting 
list,  —  the  excess,  if  rejected,  being  insufficient  to  change  the  result,  —  will  not 
warrant  the  rejection  of  the  entire  ward  return,  or  the  avoidance  of  the  election 
in  that  ward.    King  v.  Park,  155. 

2.  The  mere  fact  that  159  more  votes  were  returned  than  there  were  names 
checked  on  the  voting  list,  if  there  are  no  circumstances  corrolwrative  of  any 
presumption  of  fraud,  and  the  causes  which  produced  the  discrepancy  did  not 
aff'ect  the  result,  will  not  invalidate  the  election.     Ordicay  v.  Woodbunj,  163. 

3.  The  fact  that  there  were  repeating  and  fraudulent  voting,  and  irregulari- 
ties, and  neglect  of  duty  on  the  part  of  the  ward  officers,  in  a  ward  forming 
part  of  the  senatorial  district,  will  not  justify  declaring  the  seat  of  the  returned 
senator  vacant,  in  the  absence  of  proof  that  such  fraud  or  irregularity  affected 
the  result  of  the  election.    Stimson  v.  Boardman,  171. 

4.  The  official  returns  of  an  election  ara  prima  facie  correct,  and  the  burden 
of  proof  is  upon  the  petitioners,  to  show  fraud  or  mistake.    Barr,  Pet.  254. 

5.  Proof  of  wilful  irregularity,  or  fraud  on  the  part  of  returning  officers, 
will  invalidate  their  return,  by  depriving  their  official  acts  of  the  credit  to 
which  they  are  otherwise  entitled.    lb, 

6.  The  election  return  cannot  be  set  aside,  or  the  declared  result  of  the 
election  avoided,  by  proof  that  persons  entitled  to  vote  were  denied  the  right 
to  do  so,  unless  the  ward  officers,  in  denying  such  persons  the  right  to  vote, 
acted  dishonestly  or  coUusively,  or  unless  it  be  proved,  that  such  votes  would 
have  been  cast  against  the  sitting  members,  and  would  have  changed  the 
declared  result.    lb. 

7.  The  return  cannot  be  set  aside,  or  the  declared  result  of  the  election 
avoided,  by  proof  that  votes  were  cast  by  persons  not  entitled  to  vote,  unless 


528  INDEX. 

Fraud  axd  Illegal  Voting  —  Concluded. 

the  officers,  in  receiving  such  votes,  acted  dishonestly  or  collusively,  or  unless 
it  be  proved,  that  such  votes  were  cast  for  the  sitting  members,  and  that  the 
rejection  of  them  would  have  changed  the  declared  result.    lb. 

8.  The  fact  that  the  number  of  ballots  did  not  exactly  correspond  with  the 
number  of  names  checked  on  the  voting  list ;  that  persons,  whose  names  were 
checked,  were  denied  the  right  to  vote;  that  persons  were,  after  refusal  to 
receive  their  votes,  allowed  to  vote  upon  presenting  written  statements  from 
the  registrars  of  voters  (it  not  appearing  what  such  statements  contained) ; 
that  a  person  not  an  election  officer  was  admitted  behind  the  rail  (it  not 
appearing  that  he  was  there  without  right,  or  for  an  improper  purpose),  arc 
not  sufficient  to  prove  wilful  irregularity,  or  fraud  on  the  part  of  the  election 
officers,  or  to  avoid  the  election  return.    lb. 

9.  Where  the  petitioner  was  declared  elected  upon  the  ward  returns  by  a 
plurality  of  five  votes,  and,  upon  a  recount  by  the  aldermen,  the  sitting  mem- 
ber was  returned  by  a  plurality  of  five  votes,  — and  the  committee  in  recount- 
ing the  votes  were  unable  from  irregularities  and  errors  on  the  face  of  many 
of  the  ballots  to  ascertain  how  the  aldermen  reached  that  result,  and  it  was 
proved  that  there  had  been  fraudulent  voting,  and  irregularities  at  the  election, 
so  that  it  was  impossible  to  determine  who  had  received  a  plurality  of  legal 
votes,  the  election  was  declared  void.    Splaine  v.  McGaheij,  393. 

GOVERNOR  AND    COUNCIL. 

Recount  of  Votes  by. 

1.  It  is  the  duty  of  the  governor  and  council,  upon  application  of  a  person 
claiming  an  election  as  district  attorney,  to  recount  the  ballots  for  that  office, 
duly  sealed  up  and  preserved  (Pub  Sts.  c.  7,  ^^  27,  31),  which  were  cast  in 
towns,  but  not  those  cast  in  cities,  and  upon  comparison  of  the  ballots  so 
recounted  with  the  other  returns,  to  ascertain  which  of  the  persons  voted  for 
appears  to  be  elected.     Opinion  of  Justices,  432. 

2.  After  the  governor  and  council  have,  upon  the  application  of  a  person 
claiming  an  election  as  district  attorney,  recounted  certain  ballots  given  for 
that  office,  and  have  issued  a  certificate  of  election  to  the  person  appearing  to 
be  elected,  they  have  no  power  to  recount  other  ballots.    Ih. 

3.  Under  Pub.  Sts.  chap.  7,  ^  45,  providing  that  the  governor  with  five  at 
least  of  the  council  shall  "  examine  "  the  returns  of  votes  made  by  the  city  and 
town  clerks  to  the  Secretary  of  the  Commonwealth,  under  $  40,  and  issue  his 
summons  to  such  persons  as  appear  to  be  chosen,  the  governor  has  no  power 
to  recount  the  votes.     Opinion  of  Justices,  468. 

HOUSE  OF  REPRESENTATIVES. 

The  occasions  upon  which  the  Senate  or  House  of  Representatives  may 
require  the  opinion  of  the  justices  of  the  Supreme  Judicial  Court,  under  the 
provisions  of  chap.  3,  art.  2,  of  the  Constitution,  stated  and  defined.  Opinion 
of  Justices,  441. 

For  eligibility  to,  see  Domicile,  Naturalization,  1,  2,  3,  4,  6,  7. 
Representative. 

ILLEGAL  VOTES. 

See  Elections,  6,  7,  9,  10,  11,  12,  13. 

Fraud  and  Illegal  Voting. 

INELIGIBLE  CANDIDATE. 

1.  Votes  cast  for  a  person  found  ineligible  by  reason  of  non-residence,  can- 
not, in  the  absence  of  proof  that  they  were  cast  with  knowledge  of  the  ineligi- 
bility and  with  an  intention  on  the  part  of  the  voters  to  throw  away  their 


INDEX.  529 

Ineligible  Candidate  —  Concluded. 

votes,  be  regarded  as  blanks  so  as  to  entitle  the  candidate  receiving  the  next 
highest  number  of  votes  to  the  seat.     Hinks  v.  Jones,  27. 

2.  Votes  cast  in  a  convention  of  Senate  and  House  for  the  election  of  a 
senator,  for  a  person  not  constitutionally  eligible  to  election,  cannot  be  re- 
garded as  blanks,  so  as  to  elect  the  person  receiving  the  next  highest  number 
of  votes.    KnowUon  v.  Rice,  80. 

3.  Where  the  seat  of  a  representative  has  been  declared  vacant,  on  account 
of  the  ineligibility  of  the  member  returned,  it  cannot  be  filled  by  the  person 
having  the  next  highest  number  of  votes,  being  less  than  a  plurality.  Bowker, 
Pet.  282. 

See  to  same  effect.  Editorial  note,  285,  286. 

INHABITANCY. 

See  Domicile. 

INTENTION   OF   VOTERS. 

See  Evidence,  14,  15,  16. 

IRREGULARITIES   IN   ELECTION. 

See  Election,  1,  2,  3,  4,  5,  6,  7,  8,  9,  10,  11,  12,  13,  20,  21,  22,  23,  24,  25,  26. 
Return  of  Votes,  5,  6,  7,  8,  9,  10,  11,  12,  13,  14,  15. 

JUDGE. 

A  special  justice  of  a  police  court  is  a  "judge  of  any  court  of  this  Common- 
wealth," within  the  8th  article  of  amendment  of  the  Constitution,  and  therefore 
cannot  at  the  same  time  have  a  seat  in  the  House  of  Representatives ;  and 
legally  vacates  his  judicial  office  by  accepting  a  seat  in  the  House,  and  if  he 
continues  to  exercise  the  functions  of  a  judge,  may  be  ousted  by  an  informa- 
tion in  the  nature  of  a  quo  warranto.  Commonwealth  v.  Hawkes  (Sup.  Jud. 
Court) ,  445. 

JUNIOR. 

The  word  "  Junior"  added  to  a  name  is  no  part  of  the  name,  but  merely  a 
word  of  description  used  as  one  mode  of  distinguishing  persons  of  the  same 
name.     Chapin  v.  Snow,  96. 

See  to  same  effect,  Editorial  note,  99. 

LEGISLATURE. 

See  Councillor. 

House  of  Representatives. 

Senate. 

MAYOR  AND   ALDERMEN. 

See  Aldermen. 

Apportionment  of  Representatives. 
MEETING  FOR  ELECTION. 

See  Elections,  17,  18,  19,  20,  21,  22,  23,  24,  25,  26. 

MEETING  OF  TOWN  CLERKS. 

See  Clerk  of  Town. 

MISTAKE  IN   COUNT  OF  VOTES. 

1.  Where  the  contestant  and  sitting  member  ran  on  the  same  ticket,  and 
each  was  given  upon  the  returns  from  a  town  the  same  number  of  votes,  the 
sitting  member  was  allowed  to  prove  that  only  the  votes  upon  the  regular 
ticket  had  been  counted  for  him,  and  that  19  persons  voted  for  him  who  did 


530  INDEX. 

Mistake  ix  Cotjkt  of  Votes — Concluded. 

not  vote  the  regular  ticket  or  for  the  contestant,  —  and  thereupon  it  was  held 
that  19  votes  should  be  added  to  those  returned  for  him.  Cummings  v.  Shum- 
xcay,  41. 

2.  The  fact  that  the  vote  for  senator  in  a  town  was  much  less  than  that  for 
other  candidates  on  the  same  general  ticket,  and  fourteen  less  than  the  num- 
ber of  names  checked  on  the  voting  list  (it  being  conceded  that  the  vote  for 
governor  and  lieutenant-governor  was  erroneously  returned),  will  not,  in  the 
absence  of  evidence  connecting  the  error  in  the  vote  for  governor  and  lieuten- 
ant-governor with  the  senatorial  vote,  Avarrant  the  rejection  of  the  re'urn  for 
senator  in  that  town,  or  the  ordering  of  a  tiew  election.  Leland  v.  Bhd,  153. 
See  Rf.coukt  of  Votes. 

MISTAKE   IN  NAME   OF   CANDIDATE. 

1.  Votes  cast  for  "  Luther  Chapin  of  Ware  "  should  be  ccanted  for  Luther 
Chapin,  Jr.,  of  Ware,  — where  it  appears  that  he  was  kno^vn  to  be  a  candidate 
for  the  office,  —  that  his  father,  Luther  Chapin,  lived  out  of  the  district,  and  was 
therefore  ineligible  for  election,  —  and  that  no  other  person  of  that  name  lived 
in  that  town.     Chapin  v.  Snoic,  96. 

2.  The  word  "junior  "  added  to  a  name  is  no  part  of  the  name,  but  merely 
a  word  of  description  used  as  one  mode  of  distinguishing  persons  of  the  same 
name.     lb.   Editorial  note,  99. 

3.  Votes  cast  for  "  Thomas  T.  Wright  of  Marblehead,"  for  representative, 
should  be,  in  an  election  controversy,  counted  for  Joseph  T.  Wright,  upon  proof 
that  there  was  no  person  named  Thomas  T.  Wright  in  the  disti-ict,  —  that  no 
person,  except  the  petitioner,  named  M' right,  eligible  for  election,  then  lived  in 
Marblehead,  —that  Joseph  T.  Wright  was  one  of  the  regular  candidates  of  his 
party  for  that  office,  and  that  his  name  was  printed  "Thomas,"  instead  of 
"  Joseph,"  on  some  of  the  ballots,  by  mistake.     Wright  v.  Hooper,  100. 

4.  While  any  facts  may  be  given  in  evidence  tending  to  explain  the  inten- 
tion of  the  voter  regarding  his  vote,  and  his  own  testimony  as  to  such  facts 
may  be  received,  he  should  not  be  allowed  to  testify  for  whom  he  intended  to 
vote  by  his  ballot.     Ih. 

5.  Votes  cast  for  "  L.  D.  CoggsweU  "  were  found  upon  the  evidence  to  have 
been  intended,  and  were  counted  for  Lorenzo  D.  CoggsweU.  CoggsweU  v. 
McNeil,  108. 

6.  Votes  written  and  cast  for  "Jonas  Champney"  and  "J.  Champney" 
were  counted  for  the  sitting  member,  Jonas  A.  Champney,  upon  proof  that,  up 
to  1862,  he  had  always  called  himself  and  been  called  "Jonas  Champney," 
that  his  name  had  Ijeen  so  entered  upon  the  voting  list,  and  that  he  had  voted 
and  been  assessed  in  that  name,  although  his  father,  Jonas  C.  Champney,  was 
eligible  to  election.     Arnold  v.  Champney,  121. 

7.  Votes  for  "  H.  T.  Holmes  "  were,  upon  the  evidence,  counted  for  Hemy 
T.  Holmes.     Holmes  v.  Haskell,  144. 

8.  Votes  for  George  Bartholomesz  will,  in  an  election  controversy,  be  counted 
for  George  Bartholmesz,  upon  proof  that  the  latter  was  a  regular  candidate  of 
his  party,  and  that  his  name  was  by  mistake  printed  Bartholomesr.,  upon  a 
split  ballot,  upon  which  it  was  intended  to  place  the  names  of  the  regular 
nominees  of  that  party  for  representative.     Hobbs  v.  Bartholmesz,  182. 

9.  By  a  well-established  practice  in  this  Commonwealth,  in  an  election  con- 
troversy, where  there  has  been  an  omission  or  mistake  in  the  name,  or  in  spell- 
ing the  name,  of  a  candidate,  on  the  ballots,  upon  proof  of  the  identity  of  the 
person  for  whom  the  ballots  were  intended,  as  by  evidence  of  his  residence, 
profession  or  occupation,  by  the  fact  that  he  was  known  to  be  a  candidate,  and 
no  other  person,  to  whom  the  name  could  be  applied,  was  eligible,  that  the 


INDEX.  531 

Mistake  in  Name  of  Candidate  —  Continued. 

ballots  were  printed  and  intended  to  be  printed  for  him,  or  similar  facts  tending 
to  show  for  whom  the  ballots  were  intended,  such  ballots  will  be  counted  for 
such  person.     Ilood  v.  Potter,  217. 

10.  Votes  cast  in  Saugus  for  Solomon  D.  Hood  of  Topsfield,  were  counted 
for  Salmon  D.  Hood  of  Topsfield,  upon  proof  that  the  latter  was  the  regular 
candidate  of  his  party ;  that  several  of  the  voters  of  Saugus  understood,  from 
a  party  canvassing  for  Hood,  that  his  name  was  Solomon,  and  the  name  was 
so  reported  to  the  printer  of  the  ballots,  who  so  printed  it  upon  two  forms  of 
ballots,  which  were  used  at  the  polls  until  the  mistake  was  discovered ;  that 
there  was  no  other  voter  in  Topsfield  named  Hood,  beside  the  petitioner,  and 
that  the  petitioner  had  several  times  received  and  answered  letters  addressed  to 
him  as  Solomon  D.  Ilood.    lb. 

11.  A  ballot,  upon  which  the  printed  names  of  the  tAvo  regular  candidates 
of  the  party  were  erased  by  pencil,  and  the  words  ^\fredrc  p.  Shazo"  were 
found  Ijy  the  committee,  upon  inspection,  to  be  written  in  pencil,  along  the  side 
of  the  ballot,  some  of  the  letters  being  somewhat  indistinct,  will  be  counted 
for  Frederick  P.  Shaw,  upon  proof  that  he  was  a  candidate  at  the  election,  and 
that  no  other  person,  by  name  of  Frederick  Shaw,  lived  in  the  city,  although 
there  was  a  person  there  named  Franklin  Shaw.     Shaw  v.  Buckminsfcr,  221. 

12.  Totes  for  "  E.  E.  Waterman  "  were  counted  for  Eleasur  E.  Waterman, 
upon  the  evidence.     Sampson  v.  Waterman,  2.53. 

13.  It  was  decided,  upon  the  evidence,  that  a  vote  for  "  Edwin  Waldron  " 
should  be  counted  for  Edwin  Walden.     McGibbons  v.  Walden,  2S'J. 

14.  Votes  for  "F.  P.  Merriam  "  of  Middle  ton  will  be  counted  for  Francis 
P.  Merriam  of  Middleton,  in  an  election  controversy,  upon  proof  that  the  latter 
is  the  only  voter  of  the  name  in  Middleton,  was  nominated  under  the  name  of 
"  F.  P.  Merriam,"  and  that,  at  the  election,  his  initials  were  used  in  one  town, 
on  account  of  doubt  as  to  his  Christian  name.     Merriam  v.  Batchelder,  294. 

15.  Where  there  are  several  persons  of  the  same  name  in  the  district,  all 
of  whom  are  eligible  to  election  as  representatives,  and  one  only  of  whom  has 
been  designated  as  a  candidate,  ballots  bearing  that  name  are,  in  an  election 
controversy,  by  a  reasonable  intendment,  without  further  designation,  presumed 
to  have  been  cast  for  that  candidate.    Macomber  v.  Fisher,  311. 

16.  In  a  district  composed  of  the  towns  of  Westport  and  Dartmouth,  votes 
for  "William  P.  Macomber"  will  be  counted  for  William  P.  Macomber  of 
Westport,  although  there  is  another  person  of  that  name  in  Dartmouth,  eligible 
to  election,  upon  proof  that  William  P.  Macomber  of  Westport  was  a  regularly 
nominated  candidate ;  that  it  was  understood  by  both  parties  that  the  candidate 
that  year  should  be  from  Westport ;  and  that  it  was  the  intention  of  the  voters 
to  vote  for  him.    lb. 

17.  Votes  written  for  "Henry  P.  Baker"  and  "77.  P.  Baker"  will  be 
counted  for  neniT-  Augustus  Baker,  upon  proof  that,  in  the  town  where  they 
were  thrown,  he  was  generally  kno\vn  and  called  Henry  Paul  Baker  ( Paul 
being  the  name  of  his  deceased  father) ;  and  that  at  the  election  in  that  town, 
two  voters  asked  the  clerk  what  Baker's  name  was,  and  upon  lx;ing  told 
"  Heniy  Paul,"  were  seen  to  write  upon  their  ballots.    Baker  v.  ^^mt,  378. 

13.  Votes  for  "  Henry  Baker"  and  "  Henry  A.  Baker"  will  be  counted  for 
Ilenrj'  Augustus  Baker,  although  a  Henry  Austin  Baker  lived  in  the  same  town 
and  was  eligible  to  election,  and  although  the  local  newspaper  by  mistake  pub- 
lished the  name  of  Henry  Aiistin  Baker  as  one  of  the  candidates  at  the  nomi- 
nating caucus,  and  in  the  same  item  twice  gave  the  name  as  Henry  A.  Baker, 
—  it  appearing  that  the  latter  was  not  a  candidate  for  election,  and  that  Henry 
Augustus  Baker  was  the  regular  candidate  of  his  party.    lb. 


532  INDEX. 

Mistake  in  Name  of  Candidate  —  Concluded. 

19.  But  a  canvassing  board,  whose  duties  are  purely  ministerial,  cannot 
receive  or  consider  evidence  of  exti-insic  circumstances,  but  is  confined  to  the 
record  of  votes  returned  and  laid  before  it;  and  mandamus  will  not  lie  to 
compel  the  board  to  count  votes  for  "  L.  Clark"  for  Leonard  Clark,  one  of  the 
candidates  for  county  commissioner.  Clark  v.  Board  of  Examiners  (Sup.  Jud. 
Court),  456. 

20.  The  diflFerence  in  this  respect  between  a  mere  canvassing-board,  and  a 
tribunal  empowered  to  try  election  controversies  and  decide  the  title  to  tha 
office,  stated.     Editorial  note  to  Wright  v.  Hooper,  105. 

21.  Law  regarding  mistake  in  name  of  candidate,  and  evidence  competent 
to  prove  for  whom  an  incorrectly  expressed  vote  is  intended,  stated.  lb.,  102- 
105. 

MOTION  NOT  TO  SEND  REPRESENTATIVE. 

See  Elections,  17,  18. 

NAME  ON  BALLOT. 

See  Mistake  in  Name  of  Candidate. 

NATURALIZATION. 

1.  A  certificate  of  the  naturalization  of  the  sitting  member,  issued  by  a 
competent  coui-t,  and  admitted  to  be  genuine,  is  conclusive  upon  the  question 
of  his  citizenship.     Quirk  v.  McDonald,  229. 

2.  Upon  the  question  whether  the  sitting  member  was  a  citizen,  evidence 
that  the  certificate  of  naturalization,  issued  by  a  competent  court,  was  obtained 
by  fraudulent  representations,  as  to  the  length  of  his  residence  in  this  country, 
is  incompetent.    lb. 

3.  Naturalization  is  a  judicial  act ;  certificate  of  naturalization  is  conclu- 
sive evidence  of  citizenship  in  election  controversies;  informal  record  of 
naturalization  proceedings  will  not  impau:  the  certificate  granting  citizenship ; 
what  may  be  shown  in  an  election  controversy  to  impeach  the  certificate  of 
naturalization.     Editorial  note,  231,  232. 

4.  Where  the  representative  returned,  depended  for  eligibility  as  a  citizen, 
upon  the  naturalization  of  his  father,  while  he  was  a  minor.  It  was  held  that 
the  certificate  of  naturalization  issued  to  the  father  was  conclusive  upon  the 
question  whether  his  primary  declaration  was  made  in  a  court  of  competent 
jurisdiction.     Filkitis  v.  Spillane,  331. 

5.  AVhile  it  will  be  presumed  that  an  alien  bom  person,  voting  at  an  election, 
has  been  naturalized,  the  presumption  is  overcome  by  proof  that  he  had  not 
been  in  the  country  the  required  length  of  time  to  be  entitled  to  naturalization, 
neither  the  voter  himself  nor  his  certificate  of  naturalization  being  produced 
before  the  committee ;  and  his  vote  should  be  rejected.  Whitaker  Ss  Cum- 
mings,  360. 

6.  Under  the  Constitution  an  alien  must  be  naturalized  before  he  can  become 
eligible  as  a  member  of  the  house  of  representatives ;  but  a  person,  otherwise 
qualified,  who  is  naturalized  within  the  year  preceding  his  election,  is  eligible 
as  a  representative.     Opinion  of  Justices,  435. 

7.  The  above  opinion  was  followed  by  the  house  of  representatives.  Osborne 
V.  Hallinan,  Hayden  v.  Jenkins,  306. 

NOTICE  OF  MEETING  FOR  ELECTION. 

See  Election,  19,  20,  21,  22,  23,  24,  25,  26. 


i 


INDEX.  533 

NOTICE   OF   PETITION   CONTESTING   SEAT. 

Publication  of  notice  of  a  petition  involving  the  election  of  a  representative 
is  not  necessary  under  the  statute  reciuiring  the  publication  of  jwtitions  affect- 
ing the  rights  or  interests  of  individuals  or  private  corporations.  Pease  v. 
Rowell,  108. 

OFFICER   DE    FACTO. 

1.  Where,  from  the  refusal  of  a  person  elected  as  constable  in  to^vn  meeting 
to  accept  the  office,  the  question  arises  whether  a  vacancy  exists  in  the  office, 
so  that  the  selectmen  can  fill  it  by  appointment,  or  whether  the  fonner  incum- 
bent holds  over,  and  the  selectmen  proceed  to  make  an  appointment,  and  the 
Ijerson  so  appointed  assumes  the  duties  of  the  office,  such  person  is  at  least  a 
constable  de  facto,  and  as  such  can  serve  the  warrant  for  the  town  meeting. 
Bird  V.  Merrick,  Hi). 

2.  An  election  will  not  be  set  aside  where  full  notice,  as  required  by  the  vote 
of  the  town,  has  been  given,  merely  because  such  notice  may  have  been  served 
by  a  person  who  was  not  de  jure  a  constable.     lb. 

See  to  same  efifect,  Editorial  tiote,  119. 

OPINION  OF  JUSTICES  OF  SUPREME  JUDICIAL  COURT. 

Upon  what  occasions  the  opinion  of  the  justices  of  the  Supreme  Judicial  Court 
may  be  required  by  either  branch  of  the  legislature,  under  chap.  3  of  article  2 
of  the  Constitution.     Opinion  of  Justices,  441. 

PARTIES  TO  PETITION. 

See  Practice,  6,  8. 

PASTER  ON  BALLOT. 

1.  A  ballot,  in  which  the  name  of  the  regular  candidate  for  senator  was 
covered  by  a  paster,  loosely  attached,  bearing  the  name  of  Jeremiah  Cla,  the 
end  of  the  paster,  evidently  containing  the  last  two  letters  of  the  name  Clark, 
having  been  torn  off,  should  be  counted  for  Jeremiah  Clark,  who  was  the  reg- 
ular candidate  of  the  opposing  partj'  for  that  office.     Clark  v.  Salmon,  191. 

2.  Where,  on  ballots  for  state  officers,  containing  the  printed  name  of  Jere- 
miah Clark,  for  senator,  there  was  written,  in  pencil  upon  the  margin,  at  the 
bottom  of  the  ballot,  "  W.  F.  Salmon,  senator,"  the  name  of  Clark  not  being 
erased;  —  or  where  a  strip  was  securely  attached,  by  pins,  just  Ijelow  tlie 
name  of  Clark,  on  which  was  printed,  for  senator,  etc.,  William  F.  Salmon, 
such  strip  not  covering  the  name  of  Clark,  so  that,  on  each  ballot,  the  names 
of  both  candidates  for  the  office  appear;  —  the  vote  cannot  be  coimted  for 
either  candidate.    lb. 

3.  Where,  on  a  baUot  for  state  officers,  upon  which  the  name  of  Salmon 
was  printed,  as  the  regular  democratic  candidate  for  senator,  the  name  of 
Clark,  who  was  the  regular  republican  candidate,  was  pasted  over  the  name  of 
the  candidate  for  some  other  office  than  that  of  senator,  leaving  the  name  of 
Solomon,  for  senator,  unimpaired,  —  there  being  on  the  paster  no  designation 
of  the  office  for  which  Clark  was  named,  — the  vote  cannot  be  counted  as  a 
vote  for  Clark,  for  senator,  but  will  be  counted  for  Salmon,    lb. 

4.  Where  on  the  ballot,  the  title  to  the  office  for  which  a  person  is  a  candi- 
date, —  that  of  representative,  is  wholly  or  partially  obliterated  by  a  paster 
for  senator  pasted  on  the  ballot,  the  ballot  will  ))e  counted  as  a  vote  for  repre- 
sentative for  the  person  named,  —  the  presumption  being  that  the  voter  in- 
tended to  vote  for  such  person  for  representative  and  not  to  have  his  vote  inop- 
erative.    Chappelle  v.  Prince,  396. 

5.  Construction  of  defective  ballots ;  —  erasures  on  ballots ;  —  omission  to 
erase  printed  name ;  —  pasting  name  in  wrong  place  on  ballot ;  —  votes  with  no 
designation  of  office.    Editorial  note  to  Clark  v.  Salmon,  194-196. 


534  INDEX. 

PAUPER. 

1.  A  voter,  who,  for  some  three  months  previous  to  Sept.  23, 1867,  had  been 
assisted  by  the  town  to  the  extent  of  $23,  on  account  of  his  wife's  sickness, 
and  had,  eight  years  before,  received  $45,  when  four  of  his  children  died  in 
one  month,  which  latter  simi  he  had  repaid,  and  after  September  23d  had  not 
been  assisted,  and  was  able,  if  well,  to  take  care  of  himself,  was  held  not  a 
pauper,  and  his  vote  should  be  counted.     Shaw  v.  Abbott,  139. 

2.  A  voter  in  Middleborough,  living  with  a-woman  not  his  wife,  who  had  two 
children,  was  able  to  support  himself,  but  the  woman  was  unable  to  support 
herself,  and  the  town  of  Carver,  in  which  they  all  had  a  settlement,  employed 
a  neighbor  to  give  him  and  his  famil.y  $1.50  per  week,  which  was  regularly 
paid  to  them,  mostly  in  provisions ;  it  was  held  that  he  was  a  pauper  and  not 
qualified  to  vote.     lb. 

3.  By  the  3d  article  of  amendment  to  the  Constitution,  the  disqualification 
of  pauperism  is  not  required  to  have  ceased  to  exist  for  any  definite  period  of 
time,  in  order  to  entitle  a  man  actually  free  from  such  disqualification,  and 
otherwise  qualified,  to  exercise  the  right  of  suf&age.  Opinion  of  Justices, 
453. 

PETITION  CONTESTING  ELECTION. 

See  Amendment  to  Petition. 

Notice  of  Petition  contesting  Seat. 
Practice. 

PETITION  FOR  RECOUNT  OF  VOTES. 

See  Recount  of  Votes. 

PRACTICE. 

1.  At  the  general  election  in  which  44  representatives  were  to  be  elected 
from  Boston,  the  representative  whose  seat  was  controverted,  —  Jones,  —  was 
elected  with  42  others,  the  two  next  highest,  Ilinks  and  Cornell,  having  the 
same  number  of  votes,  so  that  there  was  no  choice  of  the  44th  member.  At  a 
subsequent  election  to  fill  the  vacancy,  another  i^erson,  one  Conley,  was  elected. 
In  a  petition  by  Ilinks  and  Cornell  against  Jones  and  Conley,  it  was  claimed 
that  Jones  was  ineligible,  so  that  both  petitioners  were  elected  at  the  general 
election,  and  Conley's  subsequent  election  was  void.  It  was  held  that  Jones 
could  not  introduce  evidence  that  there  were  informalities  or  illegal  proceed- 
ings in  certain  wards  at  the  general  election,  rendering  the  election  in  those 
vards  void,  and  thereby  so  changing  the  result  that  other  persons  than  the 
petitioners  would  be  the  next  highest  candidates  to  those  returned  as  elected, 
as  his  right  could  not  be  affected  by  such  evidence.     Ilinks  v.  Jones,  'IJ. 

2.  Publication  of  notice  of  a  petition  involving  the  election  of  a  representa- 
tive is  not  necessaiy  under  the  statute  requiring  the  publication  of  petitions  af- 
fecting the  rights  or  interests  of  individuals  or  private  corporations.  Pease  v. 
Bowell,  108. 

3.  Under  a  general  allegation,  in  a  petition,  that  the  petitioner  received  a 
plurality  of  votes  cast,  he  can  file  specifications  before  the  committee,  setting 
up  fraudulent  conduct  on  the  part  of  the  selectmen  of  certain  towns  in  the  dis- 
trict, and  claiming  that  by  reason  thereof  the  entire  vote  of  those  towns  should 
be  rejected,  so  that  he  would  have  a  plurality  of  all  the  remaining  votes  cast 
in  the  district.     Palmer  v.  Iloioe,  145. 

4.  It  seems  that  a  claim  for  a  seat  in  the  senate  should  be  made  by  a  peti- 
tion, stating  the  ground  upon  which  the  seat  is  claimed ;  but  where  the  petition 
does  not  state  such  gi-ound,  the  petitioner  may  be  allowed  to  file  specifications 
alleging  it.    Jenks  v.  Hayes,  198. 


INDEX.  535 

Practice  —  Concluded. 

5.  Evidence  of  iiTCgularity,  in  the  election,  or  in  the  return,  or  ascertain- 
ment of  the  result,  will  be  considered,  although  such  iiTcgularity  is  not  ex- 
pressly alleged  in  the  petition.     Stimpson  v.  Breed,  257. 

6.  Action  can  be  taken,  upon  a  petition  for  a  seat  as  representative,  alleging 
the  ineligibility  of  the  sitting  member,  although  the  contestant  is  himself  ineli- 
gible to  the  office.     Jenkins  v.  Shaw,  266. 

7.  Qnccrc :  whether,  under  a  petition  for  a  seat  as  representative,  not  ask- 
ing for  a  recount  of  votes,  the  petitioner  can,  at  the  hearing,  request  such  a 
recount.     Scribner  v.  Keycs,  290. 

8.  It  is  not  necessary  that  the  party  claiming  the  seat,  or  entitled  to  it,  if 
the  sitting  member  is  ousted,  should  bring  the  petition  for  the  seat,  or  even 
sign  it  with  others.     Claflin  v.  Wood,  353. 

PRIVILEGE  OF  SECRECY  IN  VOTE, 

See  Voter,  4,  5,  6,  7,  8. 

PUBLICATION  OF  NOTICE  OF  PETITION  FOR  SEAT. 

See  Notice  of  Petition  contesting  Seat. 

QUALIFICATION  OF  VOTERS. 

See  Domicile,  Naturalization,  Pauper,  Registration  of  Voters,  Tax. 

QUALIFY,  FAILURE  OF  REPRESENTATIVE  ELECT  TO. 
See  Representative  in  the  Legislature,  4. 


RECORD  OF  VOTES. 


RECOUNT  OF  VOTES. 


See  Election. 

Return  of  Votes. 


By  Aldermen. 

1.  Where  the  ballots  cast  at  an  election,  in  certain  wards  in  a  city,  were  not 
transmitted  to  the  city  clerk,  by  the  constable  in  attendance  at  the  election,  nor 
by  one  of  the  ward  officers,  other  than  the  ward  clerk,  and  the  ward  clerk  did 
not  retain  custody  of  the  seal,  as  required  by  Acts  of  1863,  chap.  144,  $  2 
(Pub.  Stats.,  chap.  7,  §  28),  but  the  ballots  were  returned  by  the  clerks  of  the 
wards,  or  other  unauthorized  persons,  and  the  ward  seals  were  returned,  with 
the  ballots,  to  the  city  clerk,  although  there  was  no  evidence  of  fraud,  or  tam- 
pering with  the  ballots,  it  was  held,  that  such  failure  to  comply  with  the  statute 
regarding  the  return  and  preservation  of  ballots,  deprived  the  aldermen  of  any 
right  to  recount  such  ballots.    Davis  v.  Mu,rph>j,  177. 

2.  Where  the  written  notice,  on  the  part  of  ten  or  more  citizens  of  any  ward, 
required  for  a  recount  and  examination,  by  the  aldermen,  of  the  votes  cast  in 
the  ward,  is  not  given  to  the  city  clerk  within  the  time  provided  by  law,  the 
aldermen  have  no  right  to  recount  such  votes.    lb. 

3.  Under  chapter  376  of  the  Acts  of  1874,  ^  27  and  42  (substantially  Pub. 
Stat.,  chap.  8,  §^  10  and  11),  the  time  within  which  a  petition  for  a  recount  of 
votes  can  be  received,  and  acted  upon,  expires  with  the  adjournment  of  the 
meeting  of  the  clerks.    Haskell  v.  Closson,  233. 

4.  A  recount  of  votes,  in  a  ward  of  a  city,  by  the  aldermen,  after  the  time 
fixed  therefor  by  law,  is  illegal  and  void ;  and  the  retm-n  of  the  election,  as 
amended  by  the  result  of  such  recount,  cannot  be  regarded  as  the  true  return 
from  the  ward.    1  b. 


536  INDEX. 

Recount  of  Votes  —  Continued. 

5.  Under  Pnb.  Stats.,  chap.  7,  \J  36,  the  board  of  aldermen  of  a  city,  upon 
a  proper  statement  in  writing  by  ten  or  more  qualified  voters  of  any  ward,  filed 
with  the  city  clerk  within  three  days  following  any  election,  has  the  jurisdic- 
tion and  authority  to  open  the  envelope  containing  the  ballots  thrown  at  the 
election,  and  recount  the  same,  including  those  for  the  offices  of  sheriff  and 
district  attorney.     Opinion  of  Justices,  468. 

6.  Under  Pub.  Stats.,  chap.  7,  ^  36,  providing  for  the  filing  by  ten  or  more 
qualified  voters  of  a  city,  of  "  a  statement  in  writing  that  the}'  have  reason  to 
believe  that  the  returns  of  the  ward  oflScers  are  erroneous,  specifying  wherein 
they  deem  them  in  error,"  —  a  statement  that  the  signers  have  reason  to  be- 
lieve that  the  returns  of  the  ward  officers  are  erroneous  in  regard  to  certain 
ofl[icers  mentioned,  is  sufficient,     lb. 

By  Goteenor  and  Council. 

7.  It  is  the  duty  of  the  governor  and  council,  upon  application  of  a  person 
claiming  an  election  as  district-attorney,  to  recount  the  ballots  for  that  office, 
duly  sealed  up  and  preserved  under  the  statute  of  1874,  chap.  376,  (J^  42,  46, 
47  (Pub.  Stat.,  chap.  7,  ^^  27,  31),  which  were  cast  in  towns,  but  not  those  cast 
in  cities,  and  upon  comparison  of  the  ballots  so  recounted  with  the  other  re- 
tmns,  to  ascertain  which  of  the  persons  voted  for  appears  to  be  elected.  Opin- 
ion  of  Justices,  432. 

8.  After  the  governor  and  council  have,  upon  the  application  of  a  person 
claiming  an  election  as  district-attorney,  recounted  certain  ballots  given  for 
that  office,  and  have  issued  a  certificate  of  election  to  the  person  appearing  to 
be  elected,  they  have  no  power  to  recount  other  ballots.    lb. 

9.  Under  Pub.  Stats.,  chap.  7,  §  45,  providing  that  the  governor,  with  five 
at  least  of  the  council,  shall  "  examine  "  the  retm-ns  of  votes  made  by  the  city 
and  town  clerks  to  the  secretary  of  the  Commonwealth,  under  section  40,  and 
issue  his  summons  to  such  persons  as  appear  to  be  chosen,  the  governor  has 
no  power  to  recount  the  votes.     Opinion  of  Justices,  468. 

By  the  Senate  or  House  Granted. 

10.  Where  two-thirds  of  the  votes  cast  for  representative  in  a  town  meeting 
were  counted  by  the  clerk  alone,  during  the  time  when  the  meeting,  attended 
by  1,000  citizens,  was  engaged  in  an  angry  contest  over  the  question  of  striking 
the  clerk's  name  from  the  jury  list,  and  so  great  confusion  and  disturbance 
existed  that  the  moderator  lost  i  outrol  of  the  meeting,  and  finally  declared  it 
dissolved  before  the  question  couid  be  settled,  — it  was  held  l^y  a  majority  of 
the  committee  (a  minority  dissenting) ,  that  the  votes  should  not  be  recounted,  — 
but  the  house  accepting  the  minority  report,  ordered  the  committee  to  recount 
the  votes.     Monroe  v.  Cummings,  212. 

11.  Where  the  election  for  representative  was  reported  to  have  resulted  in  a 
tie,  and,  in  one  town  in  the  district,  180  votes  were  returned,  as  cast  for  repre- 
sentative, while  only  152  names  were  checked  upon  the  voting  list  in  the  town, 
it  was  held  sufficient  ground  for  making  a  recount  of  the  votes  in  the  district. 
Maxwell  v.  Vincent,  225. 

12.  Where  votes  cast  in  a  ward,  forming  part  of  a  representative  district, 
were,  in  good  faith  recounted  by  the  aldermen,  after  the  time  prescribed  by 
law,  and  such  recount  showed  that  the  petitioner  had  a  plurality  of  the  votes  in 
the  district,  instead  of  the  sitting  member,  who  had  a  plturality  according  to 
the  original  return,  the  house  (against  the  report  of  the  majority  of  the  com- 
mittee on  elections)  ordered  a  recount  of  the  votes  for  representative  in  the 
whole  district.  Upon  such  recount  the  petitioner  was  found  to  be  elected,  and 
the  seat  was  given  to  him.     Haskell  v.  Closson,  233. 


INDEX.  537 

Recount  of  Votes  —  Continued. 

13.  "Where,  after  the  count  of  votes  for  representative  in  a  town,  before  the 
declaration  of  the  result,  a  recount  of  those  votes  only  was  made  Ijy  the  select- 
men, and  an  error  found  in  the  original  count,  amounting  to  a  gi-eater  number 
of  votes  than  the  plurality  by  which  the  sitting  member  was  returned  as  elected 
senator  in  the  district,  the  votes  for  senator  in  that  town  will  be  recounted  by 
the  senate.     Clapp  v.  Sherman,  307. 

14.  Where,  at  the  election  of  representative,  in  a  district  composed  of  the 
city  of  Haverhill  and  town  of  Methuen,  the  petitioner  was  elected,  according 
to  the  original  count,  but  the  votes  of  Haverhill  were  afterwards,  upon 
petition,  recounted  by  the  aldermen,  and  by  the  recount  the  sitting  member 
was  returned  as  elected  by  a  plurality  of  three  votes  in  the  district,  the  votes 
of  the  district  were  recounted  by  a  majority  of  the  committee. 

The  chairman  of  the  committee  submitted  his  views,  as  a  minority,  that  a 
recount  of  the  votes  in  part  of  a  district,  by  the  proper  authority,  in  the  absence 
of  evidence  tending  to  throw  suspicion  upon  tlie  i-eturns  of  the  other  portion  of 
the  district,  affords  no  reasonable  gi-ound  for  the  house  of  representatives  to 
recount  the  votes  of  the  balance  of  the  district.    Kimball  v.  Tillon,  315. 

15.  Where  the  petitioner  was  declared  elected  by  the  ward  returns  of  a  city, 
and  the  votes  were  afterwards,  upon  petition,  recounted  by  the  aldermen  of  the 
city,  and  the  sitting  member  found  by  the  recount  to  have  a  plurality  of  three 
votes,  the  house,  against  a  report  of  the  majority  of  the  committee,  ordered 
the  votes  recounted ;  the  minority  of  the  committee  reporting  in  favor  of  a 
recount,  on  the  ground  that  the  original  count  by  the  ward  officers  was  care- 
fully made ;  that  in  the  recount  Ijy  the  aldermen  there  was  reason  to  suppose 
that  certain  votes  for  "  Dr.  Bowker  "  and  "  H.  L.  Bowker  "  were  not  returned 
by  them  as  so  cast,  but,  if  returned  at  all,  were  classified  with  fourteen  votes 

'returned  as  cast  for  "all  others " ;  that  other  persons  assisted  the  aldermen  in 
making  the  recount ;  and  that  there  was  a  dispute  as  to  how  many  votes  were 
upon  the  recount  returned  as  cast  for  "  all  others."    Bowker  v.  Bond,  320. 

16.  Where  the  ballots  in  one  town  were  sorted' uito  four  different  bundles, 
and  each  bundle  counted  by  a  different  person,  no  one  person  verifying  the 
count,  —  the  votes  of  that  town  will  be  recounted  by  the  house  of  representa- 
tives,    nillnian  v.  Flanders,  338. 

17.  Where  the  vote  of  a  town  as  first  counted  would  elect  the  petitioner,  and 
by  a  recount  four  less  votes  were  found  for  him,  so  that  the  sitting  member 
was  returned  by  a  plurality  in  the  district,  —  the  committee,  considering  it 
probable  that  a  mistake  was  made  in  the  count,  recounted  the  votes  of  that 
town.     Claflin  v.  Wood,  353. 

18.  The  fact  that  the  board  of  aldennen  of  a  city  constituting  a  senatorial 
district  recounted  the  votes  cast  for  senator  at  the  same  time  and  in  the  same 
room  where  and  when  they  were  recounting  tlie  votes  cast  for  representatives  to 
the  general  court,  the  names  of  senator  and  representatives  being  on  the  same 
general  ticket,  no  committee  of  the  board,  and  no  one  member  thereof  counting 
all  the  votes  cast  for  senator,  but  where  the  votes  were  distributed  in  parcels  to 
members  of  the  board  "acting  by  twos,"  such  members  giving  the  results  of 
their  counting  to  the  city  clerk,  who  footed  and  declared  the  aggregate  result, 
which  was  not  verified  by  any  member  of  the  board,  will  wan-ant  a  recount  of 
votes  cast  for  senator  by  the  senate.    Allen  v.  Crotolcy,  368. 

19.  Where  a  mistake  was  proved  to  have  been  made  in  adding  votes  cast 
for  representatives,  in  taking  the  figure  11  for  two  ones  (1.1.)  making  a  differ- 
ence in  the  result  of  9  votes  against  the  petitioner  (the  election  having  been 
declared  a  tie),  the  votes  wiU  be  recounted.    Foster,  Pet.  377. 

20.  Where  the  votes  in  a  town  were  counted  by  the  town  clerk  alone,  during 
the  election,  until  two-thkds  of  the  whole  were  counted,  and  the  remainder 
were  counted,  some  by  the  clerk  and  some  by  one  of  the  selectmen,  neither 


538  INDEX. 

Recount  of  Votes  —  Continued. 

verifying  the  other's  count,  and  a  mistake  of  ten  votes  was  admitted  to  have 
been  made  in  the  announcement  of  the  vote  for  the  petitioner,  owing  as  the 
clerk  admitted  in  a  letter  to  a  newspaper  to  "  hurrying  to  make  the  announce- 
ment," it  was  held,  although  no  objection  to  the  mode  of  counting  was  made 
at  the  meeting,  the  votes  should  be  recounted  by  the  house  of  representatives. 
Baker  v.  Hunt,  378. 

By  the  Senate  or  House  Refused. 

21.  The  right  of  recounting  votes  will  be  exercised  only  upon  satisfactory 
preliminary  proof  of  such  substantial  facts  or  weU  grounded  causes  of  suspicion 
as  would  induce  strong  conviction  that  fraud  or  mistake,  prejudicial  to  the 
contestant,  might  appear  upon  such  examination ;  and  in  the  absence  of  such 
preliminary  proof,  the  returns  of  the  city  and  town  officials,  as  sworn  officers, 
should  stand  as  correct.     Rice  v.  Welck,  123. 

22.  The  mere  statement  that  the  contestant  and  others  have  strong  reasons 
for  believing  that  important  errors  were  made  in  the  return  of  votes,  the  correc- 
tion of  which  would  change  the  result ;  that  the  contestant  was  elected  and  a 
count  of  votes  would  so  show ;  and  the  fact  that  the  votes  at  the  municipal 
election  in  Cambridge  had  been  counted  by  the  same  persons  who  counted  the 
votes  for  councillor,  and  in  several  cases  errors  were  found  in  their  count  of 
votes  at  such  municipal  election,  are  insufficient  reasons  for  a  recount  of  votes 
for  councillor.    lb. 

23.  In  the  absence  of  any  proof  or  evidence  of  fraud  in  the  acts  of  the  elec- 
tion officers,  or  of  illegality  in  the  manner  of  calling,  holding,  or  conducting 
the  meeting  at  which  the  election  is  held,  or  in  the  manner  of  ascertaining  the 
result,  unless  the  petitioner  shows  a  reasonable  ground  for  supposing  an  error 
in  the  count,  as  made  and  returned  )jy  the  election  olTicers,  other  than  the  mere 
fact  of  there  being  but  a  few  votes  between  the  number  cast  for  the  cx^ntestant 
and  the  sitting  member,  the  votes  will  not  be  recounted.     Burt  v.  BabYM,  174. 

24.  Where  the  votes  cast  at  an  election,  in  a  town,  are  not  preserved  in  the 
manner  required  by  law,  but,  after  the  adjournment  of  the  meeting,  are  taken, 
in  a  ballot-box,  into  another  room,  by  the  selectmen,  then  tied  up  in  a  paper, 
put  in  an  unlocked  closet,  and,  a  day  or  two  later,  sealed  up,  but  not  delivered 
to  the  town  clerk  until  within  a  day  or  two  previous  to  the  hearing  before  the 
committee  of  the  house  of  representatives,  such  votes  have  not  been  preseiwed 
in  such  a  manner  as  to  justify  a  recount  by  the  house  of  representatives. 
Davis  V.  Murphy,  177. 

25.  Yv'here  the  votes  cast,  in  certain  wards  in  a  city,  were  not  preserved  and 
transmitted  to  the  city  clerk,  in  the  manner  required  by  law,  l)ut  were  trans- 
mitted by  unauthorized  persons,  with  the  ward  seals  enclosed  with  them,  and 
afterwards  were  recounted  by  the  aldermen,  without  authority,  by  which 
recount  the  declared  result  of  the  election  was  changed,  the  committee  refused 
to  count  the  votes,  and  allowed  the  declared  result  to  stand.    lb. 

23.  The  mere  fact  that  the  sitting  member  was  given,  by  the  returns  of 
votes,  only  seven  plurality  over  the  petitioner,  and  that  the  petitioner  claims 
that  a  recount  of  the  votes  would  show  a  plurality  in  his  favor,  will  not  justify 
a  recount  by  the  house  of  representatives.    Austin  v.  Sweet,  189. 

27.  The  fact  that  the  votes  in  a  town  were,  in  part  at  least,  counted  by  only 
one  of  the  selectmen,  and  the  coincidence  that,  although  there  were  a  number 
of  spUt  tickets  in  the  field,  the  vote  for  each  of  the  two  candidates  for  senator 
was  returned  as  exactly  the  same  as  for  each  of  the  two  candidates  for  gov- 
ernor, will  not,  in  the  absence  of  evidence  of  illegality,  fraud,  error,  or  reason- 
able ground  for  supposing  either  of  them  to  exist,  justify  a  recount  of  the  votes 
for  senator.     Graves  v.  Edson,  196. 


INDEX.  539 

Recount  of  Votes  —  Continued. 

28.  The  facts  that  a  person,  who  was  not  an  election  officer,  counted  the 
votes,  after  they  had  been  counted  by  one  of  the  selectmen,  —  the  others  being 
present  at  the  polls,  and  the  result  of  the  count  being  the  same,  —  and  that  the 
petitioner  received  less  votes  than  the  other  candidates  of  his  party,  for  other 
offices,  upon  the  same  ticket,  are  not  sufficient  gi-ound  for  a  recount  of  votes  by 
the  house  of  representatives.     McManus  v.  Fairbanki,  215. 

29.  The  fact  that  the  sitting  membar  was  returned,  v.'ith  a  ])lurality  of  only 
five  votes,  and  that  the  petitioner  claimed  that  one  of  the  votes  cast  was 
illegal,  and  that  there  were  nimors  of  other  errors,  which  he  could  not  trace  to 
any  reliable  source,  —no  evidence  being  introduced  and  no  claims  of  fraud 
made,  —  will  not  justify  a  recount  by  the  house  of  representatives.  Greene  v. 
Bridgman,  216. 

30.  The  fact  that  the  sitting  member  was  retru^ed,  as  elected,  by  a  plurality 
of  only  six  votes,  and  that,  in  one  town  in  the  district,  the  ballots  were  counted 
by  two  of  the  voters,  invited  by  the  selectmen  to  perform  that  service,  no 
objection  being  made  dm'iug  the  meeting  to  that  manner  of  counting,  will  not 
justify  a  recount  of  the  votes.     Slate  v.  Green,  226. 

31.  The  fact  that,  in  a  recount  by  the  aldermen,  of  votes  for  member  of 
Congress,  voted  for  upon  the  same  ballot  with  candidates  for  representative,  it 
was  discovered  that  two  rolls  of  ballots,  each  marked  as  containing  100  straight 
tickets,  in  fact  contained,  one  only  88,  and  the  other  only  78  ballots,  is  insuf- 
ficient ground  for  a  recount  of  votes,  by  the  house  of  representatives,  where 
the  plurality  of  the  sitting  member  was  134,  and  there  was  no  evidence,  from 
which  the  house  can  infer  that  other  mistakes  were  probably  made,  the  correc- 
tion of  which  would  change  the  declared  result  of  the  election.  Taylor  v.  Car- 
nc7j,  228. 

32.  Where  no  reason  is  assigned  in  a  petition  for  recount  of  votes,  and  the 
petitioner  declines  to  oifer  any  evidence  in  support  of  his  petition,  the  house  of 
representatives  will  not  recount  the  votes.     Carr  v.  Ilawkes,  229. 

33.  The  fact  that  the  orighial  declaration  of  the  vote  of  a  ward,  for  repre- 
sentative, made  by  the  warden,  at  the  close  of  the  polls,  was  erroneous,  and 
that,  thereupon,  the  ward  officers  immediately  recounted  the  votes,  finding 
seven  more  for  tho  sitting  member,  and  one  less  for  the  petitioner,  than  de- 
clared, and  verified  the  recount  by  another  count,  is  insufficient  pround  for  a 
recount  of  votes,  by  the  house  of  representatives.     Stimpson  v.  Breed,  257. 

34.  Evidence  that  the  same  ward  officers,  at  the  subsequent  municipal  elec- 
tion, made  several  errors  in  counting  the  votes  for  city  officers,  is  of  doubtful 
admissibilit}',  and  even  if  the  fact  is  proved,  is  insufficient  gi'ound  for  a  recount 
of  votes  for  representative.    lb. 

35.  The  facts,  that  the  sitting  member  was  returned  as  elected  by  only 
eleven  plm-ality,  that  as  the  votes  were  first  announced,  in  one  of  the  towns  in 
the  district,  he  had  but  seven  plurality,  and  that,  owing  to  a  scarcity  of  printed 
ballots  in  that  town,  many  of  the  votes  for  the  petitioner  were  written  in  lead- 
pencil,  are  not  sufficient  ground  for  a  recount  of  the  votes  by  the  house  of 
representatives.    Morse  v.  Lonergan,  288. 

36.  The  facts  that  the  sitting  member  was  returned  in  a  district,  composed 
of  a  ward  in  a  city,  as  elected  by  a  plurality  of  one  or  two  votes ;  that,  within 
the  proper  time,  ten  citizens  petitioned  the  aldermen  for  a  recount,  which  was 
refused  upon  very  technical,  if  not  insufficient,  grounds ;  and  that  the  final 
return  of  the  vote,  by  the  ward  officers,  differed  fi-om  the  first  declaration  of 
the  vote,  was  held,  by  a  majority  of  the  committee,  as  insufficient  to  justify  a 
recount  of  the  votes,  by  the  house  of  representatives,  in  view  of  the  fact  that, 
after  the  first  count,  and  declaration  of  the  vote,  upon  a  doubt  as  to  its  accu- 
racy, all  the  votes  for  representative  were  carefully  recounted,  by  all  the  ward 
ofiicers,  and  the  result  found  as  finally  returned.     McGibbons  v.  Walden,  289. 


540  INDEX. 

Recount  of  Votes  —  Continued. 

37.  The  fact  that,  at  the  city  election,  immediately  following  the  election 
of  representatives,  a  recount  of  votes  for  certain  city  officers  was  made  by  the 
aldermen,  and  showed  that  few,  if  any,  of  tlie  returns  made  by  the  ward  offi- 
cers at  such  city  election  were  correct,  and  that,  at  the  election  of  representa- 
tives, in  some  cases  partial  counts  of  votes  were  made,  by  one  ward  officer,  and 
were  not  verified  by  any  of  his  associates,  is  insufficient  irround,  even  if  proved, 
for  a  recount  of  votes  for  representatives,  by  the  house  of  representatives. 
Scribner  v.  Keyes,  296. 

38.  The  fact  that  the  votes  for  representative  were  counted  by  a  number  of 
ward  officers,  and  the  count  of  one  officer  was  not  always  verified  by  the 
others,  and  that,  at  the  subsequent  city  election,  the  same  officers  made  a  num- 
ber of  gross  errors  in  counting  votes,  will  not,  if  proved,  be  sufficient  ground 
for  a  recount  of  votes  by  the  house  of  representatives.  Prescott  v.  Cross/nan, 
303. 

39.  The  fact  that  the  aggregate  vote  returned,  in  a  senatorial  district,  for 
governor  exceeds,  by  2S3,  the  aggregate  vote  returned  for  senator,  will  not 
justify  a  recount  of  votes  for  senator.     Clapp  v.  Sherman,  307. 

40.  Where  votes  for  senator  in  one  town  in  a  senatorial  district  are  recounted* 
votes  in  the  other  towns  in  the  district  will  not  be  recounted  in  the  absence  of 
proof  tending  to  impeach  the  records  and  returns  in  those  towns,  the  presump- 
tion being  in  favor  of  their  accuracy.  And  this  presumption  attaches  to  the 
several  retui-ns,  and  not  simply  to  the  aggregate.     lb. 

41.  Where  votes  have,  upon  petition,  been  recounted,  by  the  board  of 
aldermen,  such  recount  must  stand,  unless  it  is  shown  that,  in  such  recount, 
clerical  or  other  errors  were  made ;  that  there  was  carelessness  or  fraud ;  or 
that  some  other  cause  existed,  which  in  the  case  of  ward  or  town  officers,  in 
the  primary  count,  would  have  been  good  ground  for  a  recount ;  and  the  votes 
will  not  be  recounted  by  the  house  of  representatives,  merel.y  because  the 
recount  by  the  board  of  aldermen  diflfered  from  the  original  count,  and  changed 
the  originally  declared  result.     O'Connor  v.  Locke,  310. 

41.  The  chairman  of  the  committee  submitted  his  views,  as  a  minority,  that 
a  recount  of  the  votes  in  part  of  a  district,  by  the  proper  authority,  in  the 
absence  of  evidence  tending  to  throw  suspicion  upon  the  returns  of  the  other 
portion  of  the  district,  affords  no  reasonable  ground  for  the  house  of  i-epresen- 
tatives  to  recount  the  votes  of  the  balance  of  the  district.  Kimball  v.  Tilton, 
315. 

43.  Votes  for  representative  will  not  be  recounted  by  the  house  of  repre- 
sentatives merely  because  the  petitioner  believes  there  may  have  been  error  in 
the  original  count.     Mulchinock  v.  Jenkins,  319. 

44.  The  mere  fact  that  a  town  clerk  after  making  out  his  record  of  the 
votes,  writing  out  the  numliers  and  the  figures  after  them,  afterwards  thought 
one  figure  was  indistinct  and  erased  it  and  wrote  the  flgm-e  again  over  the 
erasure,  — is  not  such  an  error  or  change  in  the  return,  as  will  justify  a  recount 
of  the  votes  by  the  house  of  representatives.    Hillman  v.  Flanders,  338. 

45.  Where  the  votes  for  representative  were  counted  by  the  town  clerk  and 
one  selectman,  each  verifying  the  count  of  the  other ;  and,  owing  to  irregu- 
larities in  the  election  in  allowing  voters  after  depositing  ballots  for  representa- 
tive in  the  box  for  ballots  for  other  officers  to  return  to  the  polls  and  deposit 
ballots  for  representative  in  the  proper  ballot-box,  it  would  be  impossible  to 
ascertain  the  true  result  of  the  election  by  a  recount,  the  votes  will  not  be 
recounted  by  the  house  of  representatives.     Ames  v.  Beebe,  346. 

46.  The  fact  that  it  appeared  by  the  returns  that  the  petitioner  (the  demo- 
cratic candidate)  received  less  votes  than  the  combined  votes  of  Butler  and 
Adams  (the  democratic  candidates  for  governor),  in  one  town,  and  thought 


INDEX.  541 

Recount  of  Votes  —  Continued. 

there  must  be  an  error  in  the  count,  is  not  sufficient  ground  for  a  recount. 
Cushmg,  Pet.  352. 

47.  The  fact  that  the  board  of  aldermen  of  Boston  consumed  not  more  than 
one  hour  in  recounting  the  ballots  cast  in  the  district  for  senator,  will  not  jus- 
tify a  recount  by  the  senate.    McMahan  v.  McGeough,  370. 

48.  The  fact  that  the  board  of  aldermen  of  Boston  has  frequently,  in  the 
past,  changed  the  results  of  elections,  as  declared  by  the  precinct  and  ward 
officers,  by  recounts  of  the  ballots  cast,  will  not,  in  the  absence  of  evidence 
that  the  board  of  aldermen  for  the  year  in  which  a  controverted  election  is 
held  habitually  miscounted  ballots,  justify  a  recount  of  the  vote  for  senator  by 
the  senate.    lb. 

49.  The  senate  will  not  recount  the  ballots  cast  for  a  senator  in  one  of  the 
Suffolk  districts,  because  there  is  a  possibility  that  a  recount  by  the  board  of 
aldermen  of  Boston  was  erroneous  and  wrong.    lb. 

50.  Rule  that  votes  will  not  be  recounted  merely  because  the  plurality  is 
small  reaffirmed.    lb. 

51.  Where  two  reputable  persons,  not  selectmen  or  sworn,  assisted  in  count- 
ing the  votes,  —  all  votes,  however,  either  during  the  election,  or  at  its  close 
and  before  the  vote  was  declared,  having  been  counted  by  the  selectmen,  —  it 
was  held,  that  while  the  practice  of  allowing  unsworn  and  unofficial  persons  to 
handle  an;l  count  the  ballots  was  censurable,  it  is  not  sufficient  ground  for  a 
recount  of  the  votes  by  the  house  of  representatives.  Harris  v.  Richnrdnon, 
372. 

52.  It  is  well  settled  that  in  the  absence  of  proof  or  evidence  of  fraud  in  the 
acts  of  the  selectmen,  or  of  illegality  in  the  manner  of  calling,  holding,  or  con- 
ducting the  meeting  at  which  the  election  is  held,  or  in  the  manner  of  ascer- 
taining the  result,  unless  the  petitioner  shows  a  reasonable  ground  for  supposing 
an  eiTor  in  the  count,  a  recount  of  votes  by  the  senate  will  not  be  made.  Col- 
lins v.  Cogswell,  390. 

53.  The  fact  that  the  votes  of  a  city,  composing  part  of  the  district,  were  re- 
counted by  the  aldermen  upon  petition,  and  by  the  recount  the  originally  de- 
clared result  of  the  election  was  changed,  will  not  justify  a  recount  by  the 
senate  of  votes  in  the  towns  in  the  district,  in  the  absence  of  doubt  regarding 
the  accuracy  of  the  town  returns.     lb. 

54.  The  fact  that  in  a  town,  the  actual  counting  of  the  votes  was  done  by 
only  one  selectman,  selected  for  that  duty,  the  other  selectmen  participatmg  in 
the  sorting  and  adding  of  votes,  will  not,  in  the  absence  of  doubt  regarding  the 
accuracy  of  the  count,  justify  a  recount  of  the  votes  by  the  senate.    lb. 

Unalthorized  Recount. 

55.  Where,  after  the  election,  the  ballots  were  placed  in  a  bag,  and  deliv- 
ered to  the  town  clerk,  who  placed  them  in  the  town  safe,  to  which  several  per- 
sons had  keys,  and  the  ballots  remained  there,  more  or  less  exposed  to  tamper- 
ing, until  February  13,  when  one  of  the  selectmen,  needing  the  voting  list, 
which  had  been  illegally  sealed  up  with  the  ballots,  opened  the  hag:  and  with- 
drew the  list ;  and  on  the  evening  of  that  day,  the  town  clerk,  with  the  assist- 
ance of  others  invited  by  him,  took  the  bag  from  the  safe,  which  he  found 
unlocked,  tore  it  open,  and  recounted  the  votes  for  representatives,  finding  a 
large  discrepancy  between  the  result  and  that  declared  at  the  election,  and  then 
verifying  his  recount  by  another  count,  and  neglected  to  destroy  the  ballots  as 
required  l>y  law,  —  it  was  held  that  such  recount  was  unauthorized  and  illegal, 
an  outrage  upon  the  rights  of  the  returned  memt)er,  and  entitled  to  no  weight ; 
and  the  persons  engaged  in  it  were  censured  by  resolution  of  the  house.  In 
re  Recount  in  Westjield,  333. 


542  IXDEX. 

Recount  of  Votes  —  Conclvded. 

Recount  by  Ward  Officers. 
56.  Where  the  TOtes  were  counted  every  hour  during  the  election  by  the 
warden,  who  did  not  submit  every  parcel  of  votes  to  the  ward  clerk  for  re- 
count, and  did  not  do  the  figurine;,  but  left  it  entirely  with  the  clerk,  to  enter 
upon  the  record  the  number  counted  in  the  different  parcels,  and  after  the  polls 
closed  took  the  votes  home,  leaving  them  in  a  room  with  several  persons  for 
ten  minutes  while  he  v.-as  away,  and  afterwards  tying  them  up  in  bundles  and 
putting  them  in  a  basket,  and  taking  the  basket  to  a  store,  where  it  was  left 
twenty  minutes,  and  aftei-wards  taking  it  home,  and  an  hour  later  at  home,  in 
presence  of  some  of  the  ward  officers  and  other  persons,  recounting  t')e  votes 
for  representative,  —  the  recount  changing  the  result  and  showing  that  the  peti- 
tioner was  elected,  —  it  was  held,  although  a  recount  by  the  committee  con- 
firmed the  second  count  by  the  warden,  —  the  first  coimt  and  declaration  at  the 
polls  must  stand  as  the  true  result,  and  the  petitioner  was  given  leave  to  with- 
draw.    Bean  v.  Tucker,  89. 

REFRESHMENTS. 

See  Bribery  and  CoERrmoN. 

REGISTRATION  OF  VOTERS. 

1.  A  person  cannot  be  registered  as  a  voter  after  the  expiration  of  the  time 
fijied  by  law,  and  if  not  qualified  then  he  has  no  legal  right  to  vote,  so  that 
where  a  person  does  not  pay  the  tax,  necessary  to  qualify  him  as  a  voter,  until 
the  day  of  election,  the  payment  is  made  too  late  to  entitle  him  to  vote  at  such 
election,  and  his  vote,  if  cast,  must  be  rejected.     Claflin  v.  Wood,  353. 

2.  When  the  name  of  a  person  is  not  on  the  voting  list,  and  he  has  not 
asked  to  have  it  placed  there,  he  has  no  right  to  vote,  and  if  he  votes,  his  vote 
should  be  rejected.      Whilaker  if  Ciimmmgs,  360. 

3.  Where  a  qualified  voter  has  been  improperly  refused  the  right  to  register 
or  vote,  and  has  done  everything  in  his  power  to  exercise  that  right,  and  his 
vote,  if  it  had  been  received,  would  have  changed  the  declared  result  of  the 
election,  the  election  must  be  declared  void.     Baker  v.  Tlunt,  378. 

4.  The  fact  that  a  person's  name  is  on  the  voting  list  when  the  meeting 
is  opened  and  the  voting  commences  is  prima  facie  evidence  of  his  right  to 
vote.    UarrisY.  IKA;;<cow6  (Sup.  Jud.  Court),  404. 

5.  No  action  lies  against  the  selectmen  of  a  town  for  refusing  to  put  upon 
the  list  of  voters  therein  the  name,  and  rejecting  the  vote,  of  one  who  was  not 
a  legal  voter,  although  the  proof  produced  by  him  to  them  was  sufficient  to 
establish  prima  facie  his  right  to  vote;  and  they  may  prove  at  the  trial  that 
in  fact  he  was  not  a  legal  voter.    Lombard  v.  Oliver  (Sup.  Jud.  Court),  422. 

REMOVAL  OF  RESIDENCE. 

See  Domicile. 

REPRESENTATIVE  IN  CONGRESS. 

The  qualifications  of  representatives  in  Congress  are  fixed  by  the  Constitu- 
tion of  the  United  States,  and  a  state  has  no  power  to  add  to  or  change  such 
qualifications  by  requiring  that  a  representative  shall  be  an  mhabitant  of  the 
district  from  which  he  is  elected.     Gov.  Andrew's  veto  message  of  1S62,  495. 

REPRESENTATIVE  IN  THE  LEGISLATURE. 

Appointment  of  Representatives. 
1.    Under  the  twenty-first  article  of  amendment  of  the  Constitution,  the 
mayor  and  aldermen  of  Boston,  in  the  county  of  Suffolk,  and  the  county 
commissioners  in  other  counties,  are  empowered  to  apportion  the  number  of 


INDEX.  543 

Representative  in  the  Legislature  —  Concluded. 

representatives  assigned  to  the  county  among  the  representative  districts  formed 
by  theni,  under  said  article,  as  well  as  to  form  the  districts ;  and  their'doings 
and  returns  in  the  premises  are  conclusive,  and  cannot  be  revised  by  the  house 
of  representatives  in  judging  of  the  returns  of  elections  and .  qualifications  of 
its  members.  Opinion  of  Justices,  409. 
To  same  effect,  see  Lothrop,  Pet.  49. 

El.IGIBILITT. 

2.  "Where  a  representative,  dm'ing  the  recess  of  the  legislature,  was  ap- 
pointed by  the  supreme  judicial  court  clerk  of  that  court,  of  the  court  of  com- 
mon pleas,  and  of  the  county  commissioners  for  the  county  of  Middlesex,  to 
fill  a  vacancy,  and  qualified  for,  and  assumed  the  duties  of  that  ofBce,  although 
he  resigned  the  office  before  the  legislature  reassembled,  it  was  held  that  under 
Art.  11.  of  chap.  6  of  the  Constitution,  by  the  assumption  of  the  office  of  clerk, 
he  vacated  his  seat  as  representative.    In  re  Griffin,  71. 

3.  A  special  justice  of  a  police  court  is  a  "  judge  of  any  court  in  this  Com- 
monwealth (except  the  court  of  sessions)"  within  the  eighth  article  of  the 
amendment  of  the  Constitution,  and  therefore  cannot  at  the  same  time  have  a 
Beat  in  the  house  of  representatives.  Commonwealth  v.  Baickes  (Sup.  Jud. 
Court),  445. 

Such  a  judge,  as  the  eighth  article  of  amendment  of  the  Constitution  of  the 
Commonwealth  declares  shall  not  have  a  seat  in  the  house  of  representatives, 
legally  vacates  his  judicial  office  by  accepting  a  seat  in  the  house,  and,  if  he 
continues  to  exercise  the  functions  of  a  judge,  may  be  ousted  by  an  informa- 
tion in  the  nature  of  a  quo  warranto.    96. 

For  qualification  of  citizenship,  see  Naturalization. 

For  qualification  of  inhabitancy,  see  Domicile. 

Failure  to  Qualify. 

4.  Where  a  member  elect  of  the  house  failed  to  qualify,  and,  after  an  order 
of  the  house  that  the  committee  ascertain  whether  he  intended  to  qualify,  and 
if  he  did  not,  to  consider  the  expediency  of  declaring  the  seat  vacant,  an  invi- 
tation was  sent  to  him  by  the  committee  to  state  his  intention,  to  which  he 
made  an  indefinite  answer,  the  house  declared  the  seat  vacant  and  ordered  a 
new  election.    In  re  Draper,  143. 

RESIDENCE. 

See  Domicile. 

RETURN  OF  VOTES,  RECORD,  AND  TRANSCRIPT. 

Presumption  of  Correctness. 

1.  The  official  returns  of  an  election  are  prima  facie  correct,  and  the  bur- 
den of  proof  is  upon  the  petitioner,  to  show  fraud  ormistake.  Barr,  Pet. 
254. 

2.  Proof  of  wilful  irregularity,  or  fraud  on  the  part  of  returning  officers, 
will  invalidate  their  retm-n,  by  depriving  their  official  acts  of  the  credit  to 
which  they  are  otherwise  entitled.     lb. 

3.  The  election  return  cannot  be  set  aside,  or  the  declared  result  of  the 
election  avoided,  by  proof  that  persons  entitled  to  vote  were  denied  the  right 
to  do  so,  unless  the  ward  officers,  in  denying  such  persons  the  right  to  vote, 
acted  dishonestly  or  collusively,  or  unless  it  be  proved,  that  such  •  votes  would 
have  been  cast  against  the  sitting  members,  and  would  have  changed  the  de- 
clared result.    1  b. 

4.  The  return  cannot  be  set  aside,  or  the  declared  result  of  the  election 
avoided,  by  proof  that  votes  were  cast  by  persons  not  entitled  to  vote,  unless 


544  INDEX. 

Retirx  of  Votes,  Etc.  —  Continued. 

the  officers,  in  receiving  such  votes,  acted  dishonestly  or  collusively,  or  unless 
it  be  proved  that  such  votes  were  cast  for  the  sitting  members,  and  that  the 
rejection  of  them  would  have  changed  the  declared  result,     lb. 

Irregularities  not  Avoid. 

5.  An  election  will  not  be  invalidated  merely  on  account  of  the  subsequent 
neglect  or  irregularity  on  the  part  of  election  officers  in  making  up  the  returas, 
if  the  will  of  the  voters  legally  expressed  can  be  ascertained  with  certainty. 
Johnson  v  Cole,  36 

6.  The  provisions  of  the  Act  of  1857,  chap.  3U,  ^  5  (substantially  the  same 
as  Pub  Stats.,  chap.  8,  ^8),  regarding  the  mode  of  recording  the  result  of  the 
election,  and  making  and  sealing  up  in  open  town  meeting  a  true  transcript  of 
the  record  of  the  result,  and  delivering  the  same  to  the  clerk,  are  directory, 
rather  than  mandatory,  and  not  conditions  upon  which  the  right  of  the  voters 
to  be  represented  depends.    lb. 

7.  So,  the  opening  l>y  the  town  clerk  of  the  envelope  sealed  in  open  town 
meeting,  and  exhibiting  the  transcript  to  a  selectman  of  another  town  in  the 
district  and  then  resealing  it, —making  the  record  and  transcript  after  the 
adjournment  of  the  town  meeting  instead  of  in  open  meeting,  —  making  up 
the  record  after  adjournment  of  town  meeting,  and  carrying  to  the  meeting  of 
the  clerks  on  the  following  day,  an  attested  copy  not  signed  by  the  selectmen 
or  sealed  up,  —making  up  the  record  on  the  second  day  after  the  town  meet- 
ing, and  then  drawing  up  a  statement  of  the  votes  for  representatives,  signed 
by  a  majority  of  the  selectmen  and  by  the  clerk,  sealed  up  and  delivered  to  the 
clerk  in  open  town  meeting,  and  by  him  carried  to  the  meeting  of  the  clerks  on 
the  next  day,  with  the  accidental  omission  of  the  year  of  the  election ;  —  while 
violations  of  law,  on  the  part  of  the  election  officers,  are  not  such  irregularities 
as  will,  in  the  absence  of  fraudulent  purpose  or  intentional  violation  of  duty, 
invalidate  the  election,     lb. 

8.  The  provisions  of  Acts  of  1857,  (J  5,  chap.  311  (Pub.  Stats.,  chap.  8,  $  8), 
are  directory  to  the  town  officers  merely,  and  a  failure  to  comply  with  them 
will  not  invalidate  an  election  for  representative  legally  and  fairly  conducted, 
whose  result  can  be  ascertained  with  certainty.     Beck  v.  Plummer,  40. 

9.  Where  the  transcript  of  the  record  of  the  vote  of  a  town,  carried  by  the 
town  clerk  to  the  meeting  of  clerks  on  the  day  following  the  election,  showed 
that  52  votes  were  given  for  Alden  Cummings,  while  the  record  itself  showed 
that  these  votes  were  given  for  Allen  Cummings,  —  they  were  counted  for  the 
latter.     Cummings  v.  Shwmoay,  41. 

10.  The  fact  that  the  selectmen  of  a  town  failed  to  seal  up  the  transcript  of 
the  record  of  the  votes  cast  at  an  election,  it  being  admitted  that  the  votes 
were  duly  received,  assorted,  counted,  and  declaration  thereof  made  in  open 
town  meeting,  will  not  invalidate  an  election.     Newcomb  v.  Holmes,  57. 

11.  Where  the  ballots  were  cast  and  counted  for  J.  W.  Holmes,  the  name 
of  one  of  the  candidates  for  representative,  and  the  town  clerk  ignorantly  sup- 
posing the  name  to  be  John  instead  of  Joseph,  entered  it  so  upon  the  record  or 
upon  the  transcript  thereof,  and  when  upon  the  way  to  meet  the  clerks  of  the 
other  towns  in  the  district,  on  the  day  following  the  election,  opened  the  said 
transcript  and  erased  the  letters  ohn  from  the  word  John,  leaving  J,  conform- 
able to  the  balloting  and  declaration,  it  was  held,  that  while  such  conduct  was 
unjustifiable,  it  should  not  invalidate  the  vote  of  the  town.    lb. 

12.  "Where  the  selectmen  and  town  clerk  of  Mattapoisett  omitted  to  make 
and  seal  up  in  open  town  meeting,  a  transcript  of  the  record  of  the  result  of 
the  election,  so  that  at  the  meeting  of  town  clerks  of  the  district  on  the  next 


INDEX.  545 

Return  of  Votes,  Etc.  —  Continued. 

(lay  after  the  election,  there  was  no  evidence  of  the  vote  of  the  town,  except  a 
sheet  npon  which  the  result  had  lieen  entered  prior  to  entry  on  the  records,  and 
from  which  the  result  had  been  declared ;  and  properly  deeming  this  too  in- 
formal and  insufficient  evidence  of  the  result,  the  clerks  adjourned  until  the 
next  day,  at  which  adjourned  meeting  the  clerk  of  Mattapoisett  presented  a 
transcript  of  the  record  in  the  form  required  by  statute,  except  that  it  bore 
date  on  that  day,  being  the  second  day  after  the  election,  —  it  was  held,  in  the 
absence  of  proof  of  fraud  or  incorrectness  in  the  record,  that  such  transcript, 
although  it  had  not  been  sealed  up  in  open  town  meeting,  as  required  by  law, 
should  have  been  received  and  acted  upon  by  the  clerks.     Tobey  v.  King,  60. 

13.  1  he  fact  that  the  vote  for  senator  in  a  town  was  much  less  than  that 
for  other  candidates  on  the  same  general  ticket,  and  fourteen  less  l<Jian  tho 
number  of  names  checked  on  the  voting  list  (it  being  conceded  that  the  vote 
for  governor  and  lieutenant-governor  was  erroneously  I'eturned),  will  not,  in 
the  absence  of  evidence  connecting  the  error  in  the  vote  for  governor  and  lieu- 
tenant-governor with  the  senatorial  vote,  warrant  the  rejection  of  the  return  for 
senator  in  that  town,  or  the  ordering  of  a  new  election.     Leland  v.  Bird,  153. 

14.  The  mere  fact  that  159  more  votes  were  returned  than  there  were  names 
checked  on  the  voting  list,  if  tliere  are  no  circumstances  corroborative  of  any 
presumption  of  fraud,  and  the  causes  which  produced  the  discrepancy  did  not 
affect  the  result,  will  not  invalidate  the  election.     Ordioay  v.  Woodbury,  163. 

15.  The  fact  that  the  selectmen  of  a  town,  following  a  custom  which  had 
existed  for  three  or  four  years,  appointed  as  tellers  three  reputable  persons, 
to  sort  and  count  the  votes,  who,  without  being  sworn,  performed  that  duty, 
the  selectmen  taking  no  part  in  the  count,  but  simply  accepting  the  result  as 
correct,  will  not  invalidate  the  return  in  that  town.    Pease,  Pet.  374. 

Certificate  or  Return  Avoided. 

16.  Where,  in  a  town,  the  record  did  not  state  the  whole  number  of 
votes  given  for  any  officer  voted  for ;  where  the  number  of  votes  recorded  did 
not  correspond  with  the  number  of  names  checked  on  the  voting  list ;  where  it 
was  uncertain  how  many  of  the  selectmen  participated  in  counting  the  votes ; 
where  there  was  evidence  from  bystanders  (legal  voters),  who  overlooked  the 
count,  that  they  saw  enough  more  votes  cast  for  the  petitioner  than  were 
counted  for  him,  to  change  the  declared  result,  and  verified  the  fact  by  going 
to  the  poll-room  the  morning  after  election  and,  finding  the  vofes  unsealed, 
recounted  them ;  where  depositions  of  persons  equal  in  number  to  the  number 
of  votes  found  by  this  recount  to  have  been  cast  for  the  petitioner,  to  the  effect 
that  they  voted  for  the  petitioner,  were  offered  in  evidence ;  and  where  the 
votes  were  not  preserved  as  required  by  law,  — it  was  held  by  a  majority  of 
fhe  committee,  that  the  election  in  that  town  was  void,  and,  by  the  house  of 
representatives,  that  the  election  in  the  district  was  void.  Perry  v.  Mon- 
tague, 200, 

17.  A  recount  of  votes,  in  a  ward  of  a  city,  by  the  aldermen,  after  the  time 
fixed  therefor  by  law,  is  illegal  and  void ;  and  the  return  of  the  election,  as 
amended  hj  the  result  of  such  recount,  cannot  be  regarded  as  the  true  return 
from  the  ward.     Haskell  v.  Closson,  233. 

18.  A  certificate  of  the  number  ()f  votes  given  for  county  commissioners  at 
a  town  meeting  duly  held  for  that  purpose,  and  of  the  result  thereby  appear- 
ing, signed  "Attest,  J.  S.,"  without  showing  that  it  is  a  copy  of  the  town 
record,  or  that  J.  S.  is  town  clerk,  is  not  a  return  which  the  board  of  ex- 
aminers arc  authorized  to  receive,  or  will  be  required  by  mandamus  to  consider 
in  determining  who  is  elected  county  commissioner.  Luce  v.  Mayhew  (Sup. 
Jnd.  Court),  420. 


546  INDEX. 

Return  of  Votes,  Etc.— Concluded. 

19.  The  provisions  of  the  statute,  regarding  the  meeting  of  clerks,  to  ex- 
amine and  compare  transcripts,  and  ascertain  what  persons  have  been 
elected,  should  be  strictly  complied  with  and  the  authority  of  such  clerks  to 
make  out  a  certificate  of  election,  expires  with  the  time  prescribed  by  statute 
for  so  doing.     Stimpson  v.  Breed,  2o7. 

20.  The  fact  that  such  clerks  did  not  meet,  to  examine  and  compare 
transcripts,  until  two  days  after  the  expiration  of  the  time  prescribed  by 
statute,  no  unavoidable  accident  or  emergency  preventing  a  meeting  within 
that  time,  while  not  invalidating  the  election,  will  invalidate  the  return  and 
certificate  of  the  clerks,  made  at  such  delayed  meeting,    lb. 

21.  Where  the  clerks  of  the  four  towns  composing  the  representative  dis- 
trict, did  not  meet  on  the  day  following  the  election,  to  compare  transcripts  of 
the  records  of  votes,  and  ascertain  who  was  elected,  but  two  only  of  the  four 
met,  and  signed  a  certificate  in  blank,  which  a  few  days  later  was  signed  by 
another  of  the  clerks,  who  called  and  left  his  transcript,  and  afterwards  the 
fourth  clerk  appeared  and,  with  the  clerk  having  possession  of  the  certificate, 
filled  the  blanks  from  the  returns  of  the  several  clerks,  it  was  held,  that  the  re- 
turn and  certificate  so  made  were  Invalid  and  must  be  set  aside.  IJai/nes  v. 
Hillis,  300. 

22.  Where  the  clerks  of  the  four  towns  composing  the  district,  did  not 
meet  to  compare  records  and  ascertain  the  result,  but,  owing  to  a  storm,  one 
town  clerk  failed  to  appear,  so  that  the  vote  of  that  town  was  not  counted  or 
canvassed  in  preparing  the  certificate  of  election,  —  it  was  held  that  the  certifi- 
cate issued  was  void,  and  the  result  of  the  election  was  ascertained  by  can- 
vassing the  votes  cast  in  the  district.     Ilillman  v.  Flanders,  338. 

.SELECTMEN. 

1.  Under  Act  of  1839,  chap.  42  (now  repealed),  it  was  competent  for  select- 
men, although  not  their  duty,  to  add  the  name  of  a  legal  voter  to  the  voters 
list,  after  the  voting  commences ;  but  they  could  not,  during  such  time,  hold  a 
regular  meeting  for  the  correction  of  the  list.     Waite  v.  Woodward  (Sup.  Jud. 
Court),  401. 

2.  The  fact  that  the  selectmen  of  a  town,  following  a  custom  which  had 
existed  for  three  or  four  years,  appointed  as  tellers  three  reputable  persons,  to 
sort  and  count  the  votes,  who,  without  being  sworn  performed  that  duty,  the 
selectmen  taking  no  part  in  the  count,  but  simply  accepting  the  result  as  cor- 
rect, will  not  invalidate  the  election  or  return  in  that  town.    Pease,  Pet.  374. 

3.  The  duty  of  receiving,  sorting  and  counting  the  votes,  is  imposed  by  law 
upon  the  selectmen,  as  sworn  officers,  and  any  custom  of  allowing  unqualified 
persons  to  count  the  votes,  deserves  censure.    Slate  v.  Green,  226. 

4.  While  the  omission  of  the  selectmen  to  receive,  sort,  and  count  the  votes 
is  censural)le,  it  will  not  avoid  the  election,  or  justify  a  recount  of  the  votes. 
Harris  v.  Richardson,  372. 

5.  The  judgment  and  action  of  selectmen,  in  rejecting  one  vote  of  two 
found  so  folded  or  adhering  together  as  to  prove,  in  their  honest  opinion,  double 
voting,  will  be  presumed  correct.    Prince  v.  Clarke,  65. 

See  Action  against  Selectmen. 

For  irregularity  in  conduct  or  notice  of  election, 
See  Election,  1,  2,  3,  4,  5,  6,  7,  8,  9,  19,  20,  21,  22,  23,  24,  25,  26. 

For  irregularity  in  making  return  or  transcript  of  votes, 

See  Return  of  Votes,  etc.,  5,  6,  7,  8, 10,  12,  15. 


INDEX.  547 

SENATE. 

Where  a  vacancy  occurred  in  the  Senate  by  resignation  to  be  filled  under  the 
former  provision  of  the  Constitution  (art.  4,  section  2,  chap.  1),  that  the  Sen- 
ate and  House  should  take  the  names  of  such  persons  as  should  be  found  to 
have  received  the  highest  number  of  votes  in  the  district,  and  not  elected, 
amounting  to  twice  the  number  of  senators  wanted,  if  there  be  so  many  voted 
for,  and  out  of  these  make  an  election,  it  was  held  that  it  was  proper  to  omit 
from  the  list  of  such  names  a  candidate,  who,  although  eligible  at  the  time  of 
the  general  election,  had  become  ineligible;  and  to  add  to  such  list  the  names 
of  persons  who  received  the  same  number  of  votes,  although  by  such  addition 
the  list  will  contain  more  than  twice  the  number  of  senators  wanted.  Knowl- 
ton  V.  Rice,  80. 

SENATOR. 

For  eligibility,  sec  Domicile. 

SL'ECIFICATIONS  UNDER  PETITION. 

See  Amendment. 

STICKERS. 

See  Pastbk  on  Ballots. 

SUPERVISORS   OF  ELECTION. 

The  statutes  of  1873,  chap.  376,  §  1,  directing  the  justices  of  this  court  to 
appoint  supervisors  of  election  is  unconstitutional  and  void.  Case  of  Super- 
visors of  Elections  (Sup.  Jud.  Court) ,  428, 

SUPREME  JUDICIAL  COURT. 

1.  An  act  of  the  legislature  directing  the  justices  of  the  supreme  judicial 
court  to  appoint  supervisors  of  election  is  unconstitutional.  Case  of  Super- 
visors of  Election  (Sup.  Jud.  Court),  428. 

2.  The  object  of  chap.  3,  art.  2,  of  the  Constitution  of  Massachusetts,  by 
which  "each  branch  of  the  legislature,  as  well  as  the  governor  and  council, 
shall  have  authority  to  require  the  opinions  of  the  justices  of  the  supreme 
judicial  court  upon  important  questions  of  law  and  upon  solemn  occasions," 
is  to  enable  the  advice  of  the  judges  to  be  obtained  upon  any  important  ques- 
tion of  law  which  the  body  making  the  inquiry  has  occasion  to  consider  in  the 
exercise  of  the  legislative  or  executive  powers  intrusted  to  it,  but  not  upon  a 
question  which  may  arise  in  the  course  of  judicial  administration,  and  which 
cannot  be  affected  by  legistative  or  executive  action.  Answer  of  the  Justices, 
441. 

3.  The  justices  of  the  supreme  judicial  court  prayed  to  be  excused  from 
giving  an  opinion  to  the  house  of  representatives  upon  the  following  questions  : 
"  First.  Is  a  special  justice  of  a  municipal,  district  or  police  court  such  a  judge 
as  the  eighth  article  of  amendment  to  the  Constitution  declares  shall  not  have 
a  seat  in  the  house  of  representatives  ?  Second.  If  the  first  question  is  an- 
swered in  the  affirmative,  does  the  acceptance  of  the  legislative  vacate  the 
judicial  office  ? "    lb. 

TAMPERING  WITH  BALLOTS 

See  Ballots,  10,  11, 12, 13. 

TAX. 

1.  Where  certain  names  on  the  voting  list  are  marked  with  a  sign  that  the 
persons  whose  names  are  so  marked  have  not  paid  the  required  tax,  under 
instructions  to  the  ward  officers  not  to  refuse  the  vote  of  any  person  whose 


548  INDEX. 

Tax  —  Concluded. 

name  is  so  marked,  but  to  challenge  it,  and  if,  after  such  notice,  the  voter 
insists  upon  voting  at  his  peril,  to  receive  the  vote,  the  burden  of  proof  is  upon 
the  person  contesting  the  legality  of  such  vote,  when  so  received,  to  prove  that 
such  voter  has  not  paid  the  required  tax.     Ordway  v.  Woodbury,  163. 

2.  Persons  who  were  assessed  and  paid  the  taxes  necessary  to  qualify  them 
as  voters  between  October  1  and  November  1  preceding  the  election,  and  were 
then  registered  as  voters,  were  illegally  assessed  and  were  not  qualified  to  vote  . 
at  such  election.     Hillman  v.  Flanders,  338. 

3.  The  assessors  of  a  town  have  no  power  to  abate  the  tax  of  a  o  as 
to  affect  his  right  of  suffrage,  except  upon  his  application,  and  with  his  full 
knowledge  and  consent,  and  any  attempt  to  abate  it  without  such  consent  will 
be  ineffectual.    Baker  v.  Hunt,  378. 

4.  The  assessors  of  a  town  assessed  a  voter  there,  nearly  80  years  of  age, 
for  the  year  1882,  and  afterwards,  without  any  application  from  him,  abated 
the  tax  "on  account  of  his  age,  infirmity  and  poverty,  supposing  that  he  could 
still  remain  a  voter,  and  did  not  assess  him  in  1883.  His  name  remained  on 
the  voting  list  until  just  before  the  election  in  1883,  when,  although  it  was  upon 
the  posted  list,  a  pencil  was  drawn  through  his  name  on  the  list  in  the  hands 
of  the  selectmen,  with  a  note  that  the  reason  was  that  he  was  not  taxed.  On 
the  Saturday  before  the  election,  he  went  to  the  selectmen's  room  and  paid  his 
poll  tax  for  1882  to  the  town  collector,  taking  a  receipt,  and  then  requested  the 
selectmen  to  put  his  name  on  the  voting  list,  which  they  declined  to  do;  — it 
was  held  that  his  name  should  have  been  placed  on  the  voting  list.    lb. 

TIME   OF   MEETING   OF   TOWN   CLERKS. 

See  Clerks,  1,  2,  3,  4. 

TIME   OF  REGISTRATION   OF   VOTERS. 

See  Registration  of  Voters,  1,  4. 

TOWN  MEETING  FOR  ELECTION. 

See  Election. 

TRANSCRIPT  OF  RECORD  OF  VOTES. 

See  Returns. 


VACANCY  IN  SENATE. 


See  Senate. 


VOTER. 

Effect  of  Refusing  Vote. 

1.  Where  a  qualified  vo^-^r  has  been  improperly  refused  the  right  to  register 
or  vote,  and  has  done  everything  in  his  power  to  exercise  that  right,  and  his 
vote,  if  it  had  been  received,  would  have  changed  the  declared  result  of  the 
election,  the  election  must  be  declared  void.    Baker  v.  Hunt,  378. 

Intention  of  Voter. 

2.  While  any  facts  may  be  given  in  evidence  tending  to  explain  the  inten- 
tion of  the  voter  regarding  his  vote,  and  his  own  testimony  as  to  such  facts 
may  be  received,  he  should  not  be  allowed  to  testify  for  whom  he  intended  to 
vote  by  his  ballot.     Wright  v.  Hooper,  100. 

See  to  same  effect,  Editorial  note,  102-105. 

3.  A  voter  will  not  be  allowed  to  testify  for  whom  he  intended  to  vote  by 
his  ballot.     Baker  v.  Hunt,  378. 


INDEX.  549 

Voter  —  Concluded. 

Privilege  of  Secrecy  ix  Vote. 

4.  A  voter  cannot  toe  compelled  to  disclose,  either  directly  or  indirectly,  the 
character  of  his  vote,  when  voting  by  ballot,  and  he  cannot  be  required  to 
testify  for  whom  he  voted,  nor  to  what  party  he  belonged.  Palmer  v.  Hoioe. 
145. 

5.  This  exemption  from  obligation  to  disclose  the  charactet  of  his  vote,  or 
for  whom  cast,  is  a  personal  privilege  which  can  be  claimed  only  by  the  voter 
himself,  and  the  question  can  therefore  be  put  to  the  witness,  and  if  he  sees  fit 
to  answer,  there  is  no  objection  to  the  testimony.    lb. 

6.  Upon  the  question  for  whom  a  person  voted,  evidence  of  persons  seeing 
the  ballot  cast,  statements  of  the  voter  to  other  persons  as  to  how  he  had  voted, 
and  evidence  that  the  voter  was  generally  i-epoi-ted  to  belong  to  a  certain  politi- 
cal party,  were  admitted  as  competent,    lb. 

7.  Qualified  voter  need  not  discloee  for  whom  he  voted ;  —  nor  can  othei-s 
disclose  without  voter's  consent ;  —  i)rivilege  can  be  waived  by  voter ;  —  privi- 
lege does  not  extend  to  persons  voting  illegally ;  —  evidence  to  show  how  un- 
qualified voter  voted.     Editorial  note  to  Palmer  v.  Howe,  149-151. 

8.  Evideyice.  A  voter  cannot  be  compelled  to  state  for  whom  he  voted,  but 
his  declaration  to  others,  as  to  how  he  voted,  is  competent  evidence.  Davis  v. 
Murphy,  177. 

Qualifications  of  Voter. 

As  to  citizenship,  see  Naturalization. 

As  to  pauperism,  see  Pauper. 

As  to  registration,  see  Registration  of  Voters. 

As  to  residence,  see  Domicile. 

As  to  taxation,  see  Tax. 

VOTES. 

Double  Voting. 

1.  Where  votes  are  found  so  folded  or  adhering  together  in  the  baUot-box 
as  to  prove,  in  the  honest  opinion  of  the  selectmen,  double  voting,  and  the 
selectmen  thereupon  reject  one  vote  of  each  set  of  such  double  votes,  it  will  be 
presumed  that  their  judgment  and  action  were  con-ect.    Prince  v.  Clark,  65. 

2.  Semble.  "Where  two  votes  for  the  same  candidate  at  an  election  are  cast 
by  one  qualified  voter,  one  of  them  will  be  counted.    lb. 

See  to  same  etfect.  Editorial  7iote,  69. 

3.  Where  two  votes  for  the  same  candidate  were  found  folded,  and  so  close 
together  that  it  could  hardly  be  discerned  that  there  were  two,  and  they  were 
laid  aside  by  one  of  the  selectmen  with  the  intention  of  calling  the  attention  of 
the  selectmen  to  them,  and  afterwards,  having  become  mixed  with  other  votes, 
were  both  counted,  it  was  held,  upon  the  evidence,  that  one  vote  should  be 
rejected.    Shaw  v.  Abbott,  139. 

Error  in  Count. 

1.  Where  the  contestant  and  sitting  member  ran  on  the  same  ticket,  and 
each  was  given,  upon  the  retmTis  from  a  town,  the  same  number  of  votes,  the 
sitting  member  was  allowed  to  prove  that  only  the  votes  upon  the  regular 
ticket  had  been  counted  for  him,  and  that  nineteen  persons  voted  for  him,  who 
did  not  vote  the  regular  ticket,  or  for  the  contestant,  —  and  thereupon  it  was 
held  that  nineteen  votes  should  be  added  to  those  returned  for  him.  Cummings 
T.  Shumway,  41. 


550  INDEX. 

Votes  —  Concluded. 

2.  The  fact  that  the  vote  for  senator  in  a  town  was  much  less  than  for  other 
candidates  on  the  same  general  ticket,  and  fourteen  less  than  the  number  of 
names  checked  on  the  voting  list,  will  not,  in  the  absence  of  evidence  of  error 
connected  with  the  vote  for  senator,  warrant  the  rejection  of  the  rettim,  or  the 
ordering  of  a  new  election.  Leland  v.  Bird,  153. 
See  Recount  of  Votes. 

VOTING  LIST. 

As  evidence,  see  Evidence,  22,  23,  24,  25. 
For  failure  to  post  or  deliver,  see  Elections,  21,  24. 

For  irregularities  regarding,  see  Elections,  1,  3,  6,  7,  10, 13 ;  Retukn  of 
Votes,  13,  14,  16. 

WARD   OFFICERS. 

See  Recount  pp  Votes,  56. 

Selectmen,  2,  3,  4,  5. 

WARRANT   FOR  MEETING. 

See  Elections,  19,  20,  22,  25,  26. 


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